that the qualification in the power, with regard to the reservation of rent then paid, could only apply to such parts of the subject of the power as were then let; but the power itself expressly extended to the manors and fishery; and it must have been known at the time of the settlement, that neither the manors nor fishery were then let; for where a general authority is given by a power to let manors, lands, &c., and afterwards there is a qualification that the usual rent shall be reserved, such affirmative qualification shall not restrain the generality of the power, but shall only apply to the part which was formerly demised. It was also objected, that as the rent was entire, and could not be apportioned, it was not clear that the ancient rent was reserved for that part of the premises which had formerly been let: in answer to which, it was said to be sufficient that the advance on the whole was 30., and that the fishery was only worth 157. a year; and the manor was not of any pecuniary value.

Lord Mansfield said, the power was express, to demise the manors and fisheries; they were particularly mentioned in the settlement, and the power went to the whole. They paid under this lease as great a yearly rent as at the time of the settlement, for they paid nothing then; the words therefore were complied with, and this objection could only stand upon intent; but the Court thought no such intent appeared. The manors were nominal, of no value, no object of yearly income, the fishery worth only 157. a year: they were convenient to the lessee living on the land, and of no use to the remainder-man: the right of fishing and shooting was reserved to him. For his part he thought the intent was to give leave to demise all, reserving as much rent in the whole, as had been paid before; and in fact 301. more had been reserved. The Court was of opinion that the lease was good.

17. A power may however be taken to be special, and not allowed to extend to all the property com

prised in the deed wherein the power is given, if it appear from the nature of the power compared with that of the property, to have been the intention of the parties that it should be special.

Oughton,

18. A power was given to a tenant for life, to make Baggot v. a lease or leases for three lives or twenty-one years, 8 Mod. 249. of all or any part of the premises in the indenture, comprised at such yearly rents, or more, as the same were then let at. Lady Baggot who was the tenant for life, married Sir A. Oughton, and made a lease to him of the capital messuage for twenty-one years; but reserved no rent. It was resolved, that this lease was void; and the judgment is said to have been affirmed in the House of Lords.

Partington,

665.

19. A person devised his estate in strict settlement, Pomery v. and gave to all the tenants for life a power to grant, 3 Term R. demise, and lease all or any of the said manors, parts of manors, messuages, lands, tenements, and hereditaments; so as the usual rents and other yearly payments, dues, reservations, and heriots, were from time to time reserved, and made due and payable. A tenant for life made a lease of certain tithes, which had never been leased before; and the question was, whether that lease was good.

Lord Kenyon said, when he first read over the case, he entertained no doubt upon the question; but when Cumberford's case was stated at the bar, he Ante, § 13. wished to see on what ground the Court proceeded in determining it. For if certain legal ideas were annexed to certain technical words, as in the case of limitations of real estates, it would be extremely dangerous to depart from the sense given to them by the law, however apparent the intention of the parties might be to the contrary. Now, on looking into that case, the rule would be found to be clear and undoubted; but the counsel who argued Goodtitle v. Ante, $ 16. Funucan, in stating Cumberford's case, omitted the most important words; namely, that the intention of

the parties was to govern. If that was the rule, and the Judges, in construing the particular words of different powers, had appeared to make contrary decisions at different times, it was not that they had denied the general rule, but because some of them had erred in the application of the general rule to the particular case before them; for in all the cases they professed to determine upon the intention of the parties. It was not necessary to go into all the cases, because they were all arranged in Douglas, and the due effect given to them by Lord Mansfield; from all which he at last extracts the general rule, that the construction of these powers must be governed by the intention of the parties; and in applying that rule to the case of Baggot v. Oughton, he said "In a family settlement of an estate, consisting of some ground, always occupied together with the seat, and of lands let to tenants, upon rents reserved, the qualification annexed to the power of leasing, that the ancient rent must be reserved, manifestly excluded the mansion-house, and lands about it, never let. man could intend to authorize a tenant for life to deprive the representative of the family of the use of the mansion-house. The words in such a case show that the power is meant to extend only to what has been usually let; by that means the heir enjoys all the premises in the settlement, just as they were held by his ancestor, the tenant for life; he has the occupation of what was always occupied, and the rent of what was always let."

No

Now, the whole of this reasoning applied most pointedly to the case before the Court; these tithes never had been let, but had always been occupied by the possessor of the estate; therefore he did not think that the case of Baggot v. Oughton could be distinguished from this in principle. This was the broad ground on which he was of opinion, that the lease in question was not a valid one. The other

Judges concurred; and Mr. Justice Buller observed, that in the case of Goodtitle v. Funucan, the Court relied on the words at the end of the power-" or proportionably for any part thereof," though no notice was taken of it in the printed report. For those words showed that it was the intention of the parties that the quantum of the rent, and not any particular part of the premises included in the settlement, was to guide the person in executing the power. But in this case the devisor did not intend that any part of the estate should be let, but that which had been usually demised before. 20. The third restriction usually inserted in powers. As to the of leasing, relates to the time when the lease is to lease is to comcommence; whether immediately or at a future period, whether in possession or in reversion.

2

time when the

mence.

21. Lord Holt has thus explained the nature of a Com. R. 39. lease in reversion:-" In the most ample sense, that is said to be a lease in reversion, which hath its commencement at a future day, and then it is opposed to a lease in possession; for every lease that is not a lease in possession, in this sense is said to be a lease in reversion."

In a more confined sense of the term a lease in reversion signifies a lease to begin from the determination of a lease in being, in which sense all leases, where there is a particular estate outstanding, are leases in reversion. And so is the term reversion to be taken where mention is generally made of leases in possession, under a power; for otherwise a tenant for life, with power to make leases in reversion, might make a lease to commence fifty years after his death.

22. It was formerly held that a lease made to commence from the date, or the day of the date, was a lease in reversion. But this doctrine has been altered by the following determination.

Leeds,

23. A tenant for life, with power to make leases Pugh v. D. of for twenty-one years, in possession, and not in re- Cowp. 714. version, made a lease to his daughter, to hold from

the day of the date of the indenture for twenty-one years. Lord Mansfield, after stating all the authorities on this subject, delivered his opinion that from might, in the vulgar sense, and even in strict propriety of language, mean either inclusive or exclusive: that the parties necessarily understood, and used it in that sense which made the deed effectual. That courts of justice were to construe the words of parties so as to effectuate their deeds, and not to destroy them ; more especially when the words themselves abstractedly might admit of either meaning. It was therefore adjudged, that the lease should be deemed a lease in possession, and therefore good, being warranted by the power.

24. Where a power is given indefinitely to make leases, without mentioning the time when they are to commence; it shall be taken strictly against the donee of the power, and consequently be construed so as only to authorize leases in possession, and not leases in reversion.

25. Henry Earl of Suffolk was seised of an estate under an act of parliament, to the use of himself for life, remainder to his wife for life, &c.; with a proviso, that it should be lawful for the earl to make leases for 21 years. The earl made a lease for 21 years, and before the end of it, he made another lease to the lessee for 21 years, dated the 30th of March, to commence at Michaelmas following. It was adjudged a void lease, because for the time it was a lease in reversion; and if he might make a lease to commence at the Michaelmas following, he might make it to commence twenty years after, which would destroy the effect of the settlement.

26. A power to make leases generally, does not authorize the donee to make a lease to commence after the determination of a lease in being; for it has been observed that such a lease is reversionary in the strictest sense.