Bury v. Nu 165. 6. An instrument, purporting to be a demise for gent, 5 Term R. 21 years, was as follows:-" Be it remembered that J. B. hath let, and by these presents doth demise, &c. unto R. F. for 21 years, to commence after the said J. B. hath recovered the said lands from M. O. Leases, with powers of distress, and clauses for reentry, &c. to be drawn and signed at the request of either party, as soon as J. B. recovers the said lands from M. O." Right v. Proctor, 4 Burr. 2208. Where only an agreement for a lease. Sturgeon v. Pleasant v. 7. The Court was of opinion that this instrument operated as a present demise; and that the agreement for a more formal lease was merely in further assurance. 8. On the other hand, although the most proper form of words of leasing be used, yet if upon the whole deed there appears no such intent, but that it is only preparatory, and relative to a future lease to be made; the law will rather do violence to the words, than break through the intent of the parties, by construing it a present lease, when the intent is manifestly otherwise. 9. Articles were drawn between A. and B. in this manner :-Imprimis, A. doth demise such a close to B., to have it for 40 years, and a rent reserved, with a clause of distress, &c. Afterwards there was written in the same paper, a memorandum that these articles were to be ordered by counsel of both parties, according to due form of law. Here, because the intent of both parties appeared by that memorandum, and by a lease actually drawn by the counsel, but never sealed; the parties dis1 Roll. Ab. 848. agreeing about fire-bote; it was ruled by the Court, upon evidence in ejectment, that these articles were not a sufficient lease. Higham, Goodtitle v. Way, 1 Term R. 735. 10. Upon a trial in ejectment, the defendant produced in evidence an agreement in writing, unstamped, between Lord Abingdon and the defendant's father, in the latter part of which were these words: And fur ther, the said Earl doth hereby agree to let, and the said R. W. agrees to rent and take, &c. all his estate. at Rycot. It is agreed, that the said R. W. shall enter on all the said premises immediately, but not commence payment of rent till Ladyday next. It is further agreed, that leases, with the usual covenants, shall be made and executed by the parties, on or before Michaelmas next. The Court of K. B., on a motion for a new trial, was of opinion, that this was not a lease. The case of Sturgeon v. Painter, they said, was in point. In Ante, § 9. this case there was also an express stipulation that leases should be drawn before Michaelmas. Therefore it was plainly not the intention of the parties that such agreement should operate as a lease; but only that it should give the defendant a right to the immediate possession, till a lease could be drawn. burner, 5 Term 11. Articles of agreement were entered into be- Doe v. Ashtween T. S. and D. J. respecting fulling mills and other conveniences, in which were these words,"That the said mills and conveniences, with the islands and acre of land called Ashacre, he shall enjoy. And I engage to give him a lease in, for the term of 31 years from Whitsuntide 1784, at the rent, &c.; and that I will purchase one yard in breadth to be laid to the Race from the High Clews, the length of Charles Close. And if it be bought, and the purchase is more than 200l. per acre, he the said D. J. to pay more than it costs beyond that rate." A question arose in ejectment on this article, whether it was an actual lease, or only an agreement for a lease. After argument in the K. B., Lord Kenyon said, the question turned on the intention of the parties, as it was to be collected from the whole agreement. The words were, he shall enjoy; and I engage to give him a lease, &c.; and the question was, what was the intention of the parties using those expressions? was it that this agreement should confer the legal interest; Brown v. War ner, 14 Ves. 156.409. Poole v. Bent ley, 12 East, 168. Must have a certain begin or was it not in their contemplation that there should be another instrument, to give that legal interest? The latter words clearly showed that it was the inten- tion of the parties, that there should be some further assurance. It was in fieri at the time: and if a bill had been filed in a court of equity, for a specific performance of the agreement, that Court would not have turned the plaintiff round, and told him that he already had a legal and executed contract; but would have decreed a lease of the premises, according to the agreement. If the former words in this contract had not been restrained by the engagement to give a lease in future, they would have operated as a perfect lease. But as the parties agreed, the one to give, the other to receive, a future lease, he could not conceive that this was intended to be a perfect lease. Besides, by another part of the agreement the landlord was to acquire an additional piece of ground, to be laid to the mill, without which the lease was not to be granted; this also was of importance to show that there was to be some future instrument, to give a title to the plaintiff. All the cases cited might be answered by the observation that there were either express words of present demise, or equivocal words, accompanied with others, to show the intention of the parties, that there should not be a future lease. But in this case, where the context, in which were the words shall enjoy, imported that the parties did not mean that they should operate as a present demise, he thought they would decide contrary to the intention of the parties, if they were to determine that they should have that effect. It was resolved, that the instrument only amounted to an agreement for a lease. 12. Every lease must contain a sufficient degree of ning and ending. certainty, as to its beginning, continuance, and ending. If a lease be made to begin from an impossible date, as from the 30th February, it will take effect from its delivery. But where the date or time when a lease is to 1 Inst. 48. b. Bać. Ab. Tit. Lease, L. commence is uncertain, as where a lease was made habendum from the 20th November, without saying what 1 Mod. 180. November, this uncertainty will render the lease void. 13. If a lease be made by indenture, bearing date 1 Inst. 46. b. 26th May, to hold for 21 years from the date, or day of the date; it shall begin on the 27th of May. If the lease bear date the 26th May, to hold from the making hereof, or from henceforth, it shall begin on the day Clayton's case, on which it is delivered. For the words of the in- 5 Rep. 1. denture are not of any effect till the delivery; and thereby, from the making, or from henceforth, take their first effect. But if it be à die confectionis, then it shall begin on the day after the delivery. West, 2 Wils. 165. Pugh v. D. of 14. This doctrine has been denied in two modern Freeman v. cases, in which it has been held that the word from R. may, in the vulgar sense, and even in strict propriety Leeds, infra, of language, mean either inclusive or exclusive. And c. 16. where a lease can only be supported by construing the word from inclusive, a Court ought to give it that sense. 463. 15. Lord Kenyon has said, that if a lease be granted 3 Term R. for 21 years, to commence after the death of three Dyer, 124. lives then in being, it will be good. For though it be 6 Rep. 34. b. uncertain at first, when the term will commence, yet when the lives die, it is reduced to a certainty. 16. Where a lease was made in the year 1780, to Doe v. Lea, hold from the feast of St. Michael, it was held that 11 East, 312. this must be taken to mean New Michaelmas, and could not be shown by extrinsic evidence to refer to a holding from Old Michaelmas. 17. It has been stated, that the word term not only Tit. 8. c. 1. signifies the period of time for which the estate is to continue, but also the estate and interest itself. And therefore, it was formerly held that if a person made Cheddington's a lease for 21 years, and after made a lease to begin 1 Inst. 45.b. à fine et expiratione prædicti termini 21 annorum, after Case, 1 Rep. which the first lease was surrendered; the second lease would commence immediately. But if it had 153. Wright v. Cartwright, 1 Burr. 282. Lord K.R. 529. 1 Inst. 45. b. Ferguson v. 2 Burr. 1034. been to begin post finem et expirationem prædict' 21 annorum; in that case, though the first term were surrendered, yet the second lease should not begin till after the 21 years were expired, by effluxion of time. But this doctrine has been denied in a modern case, in which it has been held that the word term may signify the time, as well as the interest. 18. As to the continuance of a lease, it must also have a certainty; but id certum est quod certum reddi potest. Therefore a lease for so many years as J. B. shall name, is a good lease for years. For though it is at first uncertain, yet when J. B. hath named the years, it is then reduced to a certainty. Thus, if a person makes a lease for so many years as he shall live; or if the parson of D. makes a lease of his glebe, for so many years as he shall be parson there; these leases are said to be absolutely void, on account of the uncertainty of their continuance. But if a lease be made for 21 years, or any other certain number of years, provided the lessor or lessee shall so long live, or continue parson of D., it will be good; for the lease is confined to a certain number of years, though it may determine sooner. 19. A lease was made for seven, fourteen or twentyone years. It was contended that it was void for un3 Term R. 463. certainty; but the Court held it was at least a lease for seven years; then if the lessee continued, it was for fourteen; and if after that he continued, it was for 21 years. Goodright v. 20. In a modern case the Court of King's Bench 3 Term R.462. held, that a lease for three, six, or nine years was determinable at the end of three or six years, by either of the parties; on giving reasonable notice to quit. But in a subsequent case the Court of Common Pleas certified to the Court of Chancery, that where a lease was granted for seven, fourteen, or twenty-one years, the lessee only had the option at which of those periods the lease should determine. Dann v. Spur rier, 2 Bos. & Pul. 399-442. |