years next before such lease thereof made;

and, that

66 every such person, and persons, to whom the reversion of

66

66

66

"such manors, lands, tenements, or hereditaments, so to be "letten shall appertain, as is aforesaid, after the deaths of such lessors, or their heirs, shall and may have such like remedy and advantage, to all intents and purposes, against the lessees "thereof, their executors and assigns, as the same lessor, should or might have had against the same lessees. So, that if the "lessor were seised of any special estate-tail, of the same hereditaments, at the time of such lease, that the issue, or heir, of that special estate, shall have the reversion, rents, and services "reserved upon such lease, after the death of the said lessor, as the lessor himself might, or ought to have had, if he had "lived."

66

It would seem, that, speaking generally, no one but a tenant is entitled to grant leases for present possession (d). Still, by means of a power operating by the statute of uses, a person, not a tenant, may acquire this right. Suppose A., seised in fee, conveys to the use of trustees, for 99 years, on certain trusts; remainder, to the use of B. for life; remainders over. Here, during the term, B. is a remainder-man; he is not a tenant, but a power may be given to B. to lease; and, subject to the term of 99 years, the lease will be valid, it is presumed, to pass a legal estate, notwithstanding that term.

years,

If A., seised in fee, conveys to B., and his heirs, or for by way of mortgage, and the mortgage money is not repaidwithin the time limited, B.'s estate becomes absolute at law. He is a legal tenant in fee, or for years, subject, in equity, to A.'s right of redemption. Whether B. is let into possession, or it is agreed that A. shall continue in it, in neither case, can A,, during B.'s estate, make a valid lease, so as to bind B. This is decided in Keech v. Hall (e), where Lord Mansfield delivered the opinion of the court, partly, in these words. "This is an

(d) See 1 Co. 62. b..

(e) Doug, 21.

"ejectment brought for a warehouse in the city, by a mortgagee,

against a lessee, under a lease in writing for seven years, made "after the date of the mortgage, by the mortgagor, who had "continued in possession. The lease was at a rack-rent.

The

mortgagee had no notice of the lease, nor the lessee any notice "of the mortgage. The defendant offered to attorn to the mortgagee before the ejectment was brought. The plaintiff is "willing to suffer the defendant to redeem. There was no notice "to quit; so that, though the written lease should be bad, if the "lessee is to be considered as tenant from year to year, the "plaintiff must fail in this action. The question, therefore, for "the court to decide, is, whether by the agreement understood "between mortgagors and mortgagees, which is, that the latter "shall receive interest, and the former keep possession, the "mortgagee has given an implied authority to the mortgagor to "let from year to year, at a rack-rent; or, whether he may not "treat the defendant as a trespasser, disseisor, and wrong-doer. "No case has been cited where this question has been agitated, "much less decided. Where the lease is not a beneficial lease, "it is for the interest of the mortgagee to continue the tenant; "and where it is, the tenant may put himself in the place of the "mortgagor, and either redeem himself, or get a friend to do it. "The idea that the question may be more proper for a court of "equity, goes upon a mistake. It emphatically belongs to a court "of law, in opposition to a court of equity; for a lessee at a rack"rent, is a purchaser for a valuable consideration, and, in every 66 case, between purchasers for a valuable consideration, a court "of equity must follow not lead the law. On full consideration, "we are all clearly of opinion, that there is no inference of fraud or consent against the mortgagee, to prevent him from consi66 dering the lessee as a wrong-doer. It is rightly admitted, that "if the mortgagee had encouraged the tenant to lay out money, " he could not maintain this action; but here the question turns upon the agreement between the mortgagor and mortgagee. "When the mortgagor is left in possession, the true inference to "be drawn is, an agreement that he shall possess the premises at "will in the strictest sense; and, therefore, no notice is ever "given him to quit, and he is not even entitled to reap the crop,

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as other tenants at will are, because all is liable to the debt; "on payment of which, the mortgagee's title ceases. The "mortgagor has no power, express or implied, to let leases, not "subject to every circumstance of the mortgage. If, by implica"tion, the mortgagor had such a power, it must go to a great "extent; to leases where a fine is taken on a renewal for lives. "The tenant stands exactly in the situation of the mortgagor. "The possession of the mortgagor cannot be considered as holding out a false appearance. It does not induce a belief,

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"that there is no mortgage; for it is the nature of the transac"tion, that the mortgagor shall continue in possession. We "are all clearly of opinion that the plaintiff is entitled to "judgment."

If A., seised in fee, mortgages to B., in fee, or for years, and. B.'s estate becomes absolute, by the mortgage money not being repaid on the day fixed, at law, it is apprehended, B., the mortgagee, can make a valid lease, so as to pass a legal estate, subject to A.'s equity of redemption: but in equity, such a lease, (unless to avoid an apparent loss, and merely on necessity) is not binding on A., the mortgagor. This point is decided in Hun-. gerford v. Clay (f). In this case, Edward Hungerford, the plaintiff, having mortgaged a house to the defendant, Clay, afterwards tendered him the principal sum and interest; which the mortgagee refusing to take, the plaintiff exhibited his bill to have a re-conveyance on the payment of the said money. The substance of the defendant's answer was, that he had made a lease of this house for 5 years, reserving so much yearly rent: and that after the expiration of the said term, he had covenanted that the lessee should hold it for 4 years longer, if he (the lessee) was willing so to do: that the said 5 years were expired, and that the lessee was willing to hold the house. 4 years longer; and that if the plaintiff would grant such lease, then the defendant would re-convey, on payment of the principal sum and

(f) Mod. Cas. in Ch. 8 Geo. I. 1722.

interest. The cause was heard at the rolls, where the defendant had a decree in his favour, but on an appeal to the chancellor, it was insisted for the plaintiff, that as a mortgagee cannot present upon the avoidance of a church, so, by the course of equity, he cannot make a lease of a house, or lands in mortgage, but where there is an absolute necessity so to do, which did not appear in this case. Admitting the mortgagee should make a lease for 4 years longer, reserving rent, and such leaṣe should be adjudged good between him and the lessee, it would be difficult for the mortgagor to recover any rent, though the principal and interest should be paid, because he does not claim under the estate of the mortgagee, and therefore cannot have any benefit of the lease made by him; for he is neither party to the deed, nor privy to the estate. It was admitted for the defendant, that a mortgagee cannot present upon an avoidance of a church; the reason is, because it does not lessen his debt; but it is otherwise where he makes a lease of a house, or lands in mortgage, rendering rent; for, certainly, the payment of rent will lessen the debt; so there is no parity of reason between these cases. But the lord chancellor was of opinion, "that the mortgagee, before foreclosure of the "equity of redemption, cannot make a lease for years of a house " in mortgage, to bind the mortgagor, unless to avoid an apparent "loss, and merely on necessity; so the decree at the rolls was " reversed."

Keech v. Hall decides, that a mortgagor cannot lease so as to bind the mortgagee; and Clay v. Hungerford, that although the mortgagee can at law make a valid lease, yet it will not in equity bind the mortgagor, When, therefore, lands are in mortgage, and a lease is to be granted, the mortgagee and mortgagor, should join in the lease. As the lease is to pass a legal estate, and the mortgagee has the legal estate, he alone, and not the mortgagor, is the party to demise in the lease, and the mortgagor should be a party to confirm it. The demise will convey a legal estate from the mortgagee, and the confirmation of this estate will bind, it is presumed, the mortgagor in equity. In this way, a lease, valid both at law and in equity, may be made, notwithstanding the

mortgage. During the estate of the mortgagee, the lessee will be his tenant; and by the determination of that estate, he will become the tenant of the mortgagor.

If, as it sometimes happens, a mortgage deed contains a proviso, which gives to the mortgagor power to lease, without the concurrence of the mortgagee, as the mortgagor has not a present legal estate, it is certain he cannot convey one. It should seem, therefore, that a mortgagor's lease under a proviso of this kind, will pass an equitable estate only; but such lease will be valid, it is presumed, against the mortgagee; and it is not necessary, nor perhaps formal, that the mortgagee should be a party to it.

SECTION XII.

BEFORE the statute quia emptores, (18 Edw. I. stat. 1) it appears a tenant in fee had three ways of disposing of his land, namely, by under-grant, by subinfeudation, by assignment (a). To undergrant, is to convey a less estate than that of the grantor. To subinfeud, was to convey an estate equal to that of the grantor, to hold of the grantor himself (b). To assign, is to convey the whole estate of the grantor, to hold of the lord above (c). If A., seised in fee, grants to B. in tail, for life, or for years, this is an under-grant. If A., seised in fee, had, before the statute quia emptores, granted to B. in fee, to hold of A. himself, this was a subinfeudation. If A., seised in fee, conveys to B. in fee; this is an assignment.

(a) See Wright, Ten. 156, note (a).

(c) Ibid, and see 2 Bl. C. 326.

G

(b) Ibid.