1840. SMITH v. CLARKE. 66 "heirs or assigns, within six months after the failure of such life, paying to the said Thomas Palmer, his heirs or assigns, the sum of £5 as "a fine for each and every life which shall happen to die, and paying all "rent and arrears due, and nominating a new life instead of the person 66 so happening first to die, the said Thomas Palmer, his heirs or assigns, "shall or will add such new life in place of the one so failing, and so "from time to time for ever upon the failure of each life." The settlor's interest in said lands of Tubrid was still subsisting, and the case states that the said lease was in all other respects conformable to the leasing power, save that on which the question arose. One of the lives named in the lease of 1783 having died, and the defendants having refused to renew, a bill was filed by the plaintiffs against the defendants in the Court of Chancery, praying for a specific performance of the covenant to renew, which has produced the present case. Mr. Wm. Smith, for the plaintiffs.-The question raised by this case has not yet been the subject of judicial decision. There are two cases very similar, but in which no decided opinions were given by the Court. O'Brien v. Grierson (a) was the case of a settlement of a single denomination of land held under one title; consequently the present case is much stronger, as here almost every species of tenure occurs. In that case, the words of the power were, "To lease for any number of years or "lives consistent with his interest, at the best," &c. Lord Manners, in Suppose the words, "consistent with their respective interests therein" were omitted, as these are the only restraining words, it can scarcely be contended but that the party could make leases for any period, and, consequently, he could make the lease in question. In Muskerry v. Chinnery, particularly reported in the Appendix to the last edition of Sir Edward Sugden's work on Powers, the words of the power were, "For any term of lives or years, with or without covenants for "renewal." Sir Edward Sugden adopts the opinion of Joy, C. B. most fully, which, although to a certain extent extra-judicial, is entitled to high respect. In observing on that case, Joy, C. B. says, "Nothing "can be more extensive; the only limit to the power of disposition is, "that he shall not alien the fee, so as to part with the reversion or "seigniorial rights." It will, perhaps, be contended on the other side, that the words, "consistent with their respective interests," according to their strict grammatical construction, must refer to the respective interests of the tenant or tenants taking the particular estates for life. If this be the construction, the power will be altogether unmeaning and inoperative, as it will not confer any right or power beyond that which each tenant for life would have without it. If any rational construction can be given to this power, the Court will adopt it, rather than hold it nugatory. In Atkinson v. Pilsworth (a), Yelverton, C. B., in delivering judgment, lays down the rule with great clearness. He says, "No words in any deed "or instrument which may have a significant and operative meaning, "without injuring the natural and obvious sense of any other part of "the deed or instrument, shall be rejected as nugatory and redundant.” Therefore, without rejecting those words, the Court may read “their” "the;" and it would appear that the latter word must have been intended by the parties, and that "their" is a clerical mistake; and the word interests may be fairly construed estates, i. e. the estates the subject of the settlement. That the intention may be collected from the recitals, we learn from Bailey v. Lloyd (b). Here the settlement recites the different interests as stated in the case. Almost every variety of tenure is made the subject of settlement; some of the denominations of lands are held in fee, some for lives with covenants for perpetual renewal, one for 999 years, &c. Therefore, their should be construed the. The lands of Tubrid, held by the settlor for three lives renewable for ever, were, by the lease of 1783, demised for three different lives, with a covenant for perpetual renewal. Had this lease been for the same lives, it would not have been within the power under a different construction from that for which I contend. The tenant for life could not make a lease for seven, or even for one year certain, having power to grant only for his own life the extent of his interest.-[BALL, J. What do you say to that part which prescribes that no fine shall be taken ?]-That question 1840. SMITH บ. ᏟᏞᎪᎡᏦ . does not arise, as the case states that the lease is in every respect, save as to the length of the term, according to the power. The case of Tuthill v. Adamson (a) is, however, quite in point. It is there decided that the words in a power," without taking fines," do not apply to fines for renewal pursuant to a covenant; and in Taylor v. Hordes (b), Lord Mansfield held, that renewal fiues are part of the annual profits, and equally for the benefit of the remainder-man. They are, in fact, an additional benefit to the remainder-man, as, besides the fines, the best improved rent must be reserved at the time of making the original lease. Mr. Moore, Q. C., and Mr. Holmes, contra.-On the hearing of this cause in Chancery, it appeared that the same question on the same settlement had arisen before Lord Manners, in Spunner v. Clarke.-[Mr. Blake. The Chancellor called on Mr. Warren or Mr. Armstrong for the particulars of that case, when, they being unable to give them, his Lordship said he would not give it any consideration. The lands there were in fee.]-There are two questions sent here: one, the validity of the lease, which we cannot coutrovert--it is not impeached in the pleadings; the other, the validity of the covenant, which we do. This settlement evidently contemplates successive new leases to be made in possession by the tenant for life, while it is contended that the first tenant may make one, binding the inheritance for ever; such a construction is so contrary to the general terms of leasing powers, that unless coerced, the Court will not allow it. The general object of such powers is to secure the interest of the estate and of the successive owners. A power to demise or lease in itself means to lease in possession, Coppleston v. Hiern (c); while here, an agreement for future leases is sought under it. Suppose the tenant for life made only the covenant for renewal, would that be a due execution of the power? The power does not authorise an assignment which has been made here.--[TORRENS, J. That would be, if the party granted for the lives named in his own lease.]-It is clear the party could not make a lease in reversion or in futuro. But it is said he may make a covenant to the same effect. This case is like a demise for 100 years, and a covenant to renew at the ther 100, which would be clearly a lease in reversion. 2 Sug. on Powers, 368, Lyn v. Wyn (d). Could it be contended that a fee-farm grant could be made of the lands held in fee? end for ano The true meaning of this power is, that the parties may make leases consistent with their own interest. If the covenant be good on the nomination of new lives within six months, it would be good within six years. The power also requires a clause of re-entry; how can the Court (a) 3 Law Fec. N. S. 156. (e) 5 M. & S. 40. () 1 Burr. 121. (d Bridg. by Ban. 131. give effect to that, when the party may not loose his right of renewal for six months or six years after the demise determines ? It has been held in this Court and in the Queen's Bench, that a clause of surrender introduced into a lease, and not warranted by the power, vitiates the lease. I do not take the law to be settled on the point, but we have a right to make use of it. Jack v. Creed (a). And how does a covenant for renewal differ, when the tenant is not bound to renew? It is said, if the power were without the words, "consistent with their interests," it would authorise any lease; but the contrary is held in Berry v. White (b), and Brumley v. Bettison (c). We admit there is not much authority upon this subject. The first case is O'Brien v. Grierson, referred to by Sir Edward Sugden in his work on Powers (d). It does not appear that in that case there was the special provision which is here respecting leasing only in possession. In Wyndham v. Holcombe (e)-[States the case]. There it was held that, under such a power, the lives must be certain and co-existing. If the case of Spunner v. Clarke were about the same lands, there would be no difference between the cases: the lands there were Kilbalyskea, part of those in the settlement of 1783. The tenant for life made a lease for three lives, with covenant for perpetual renewal, and on one of the lives dropping, Spunner filed his bill. The single question raised was, whether the power warranted the covenant for renewal ? It appears, from the notes of the decree, that Lord Manners thought it did not, and dismissed the bill. That case, it would appear, substantially decides the present. [Mr. Moore sent for the pleadings in Spunner v. Clarke, and it appeared, on looking to them, that timber had been demised, contrary to the terms of the leasing power, which required the lessee not to be dispunishable for waste.] The COURT said it was impossible to take that case as an authority. Mr. Blake, in reply.-It must be admitted, on the other side, that their construction will destroy the power altogether; but the Courts always endeavour to give full effect to settlements, and especially with respect to leasing powers. A doubt once existed on the subject, but the matter was set at rest by Lord Mansfield, in his judgment in Goodtitlev. Finucan (f), where he says, "Powers are now a common modification of property in “land, and as such, are to be carried into effect according to the inten "tion of those who create them;" and refers to a still older authority, (a) 2 Hud. & B. 128. (c) 12 East, 305. (-) 7 T. R. 713. (b Bridg. by Ban. 96. (a) Vol 2, 362, edit. 1836. (f) 2 Doug. 573. 1840. SMITH v. CLARKE. 1840. SMITH V. CLARKE. Lord Holt, in the case of Winter v. Loveday (a). Upon this, I might call on your Lordships to exclude the words "consistent with their respective interests;" but it is not necessary, for you can give them a rational construction, and it is this:-There being several kinds of estates, some in fee, some for years, and others held for lives, power was given to make leases consistent with the nature of the interest the settlor had. It is an established principle, that the donee of a power is merely the instrument for effectuating the intention of the parties who create it; he only declares an estate from the original grantor, and that the remainder-man is a mere assignee of the reversion under the statute. Isherwood v. Oldknow (b). It is necessary the words of the power should be taken to have some effect, and for the rest of my argument I will presume it was the intention of the settlor to give some power. It is said that we must read "their" "the," but I think the word applies to the interests of all the parties; and the tenant for life had the entire interest, though for a limited time, that is, during his life; the law sometimes contemplates the tenant for life as representing the whole estate. The meaning given to the words, "consistent with their respective interests," is, the whole legal interest of all the parties, reserving a reversion; that, therefore, as to the lands in fee, the tenant for life might grant a lease for any term; and as to those for 999 years, for 900; but that of the lands held by the settlor for lives renewable for ever, there was no authority to lease for any but lives in being. That very point arose in Hacket v. Hobart (c), and the same argument was used without effect. There, where a settlement of lands held under a lease of lives renewable for ever, gave power to the tenant for life to demise "for any term, or terms, consistent with the estate or term for which the said lands, &c.shall be then held," it was held that the power authorised a demise for three lives, other than the lives in the head lease; that is, that there could be carved out of the interest of the tenant for life, a good lease to his tenant. The argument is, that the tenant could not do so, but in that case the lease was held good.-[BALL, J. That was at the Equity side of the Court of Exchequer.]-It is admitted the lease here is good at law for the lives in it, but they say the covenant is a fraud on the remainder-man. It is sufficient for me to shew it was not a fraud on the power. It has been argued, that in a case like this, the Court can deal only with the legal estate, and that although a man may bind his heirs, &c., he cannot bind the remainder-man, and that even an improper covenant |