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defendant, Sir Simon Bradstreet, his eldest son, and entitled under the limitations in his grandfather's will to an estate tail in the lands in question ; the defendant did not attain his full age until November 1792, till which time the plaintiff's rent, at the rate of 71. per acre for ten acres, was received by Lady Bradstreet, the mother and guardian of the defendant, and it continued afterwards to be regularly paid' by plaintiff and received by the agents of defendant, until. November 1801, when a notice to quit was served, on which an ejectment was brought as of Easter Term 1802, shortly after which plaintiff filed this bill, and obtained an injunction.
Defendant by his answer admitted, that both before and after attaining his full age he had notice of the agreement, but insisted that his estate was not bound thereby, and that he never acted upon such agreement, but always treated and considered the plaintiff as tenant from year to year.
The case was fully argued upon a motion to continue the injunction to the hearing upon equity confessed; it being agreed by the parties, that the opinion of the Lord ChanCELLOR upon this motion should decide the cause.
Mr. Saurin, Mr. C. S. Williams, and Mr. Redford for the plaintiff.
1. It is established by numerous cases, that agreements to perform acts under powers have been held binding against remainder-men. Coventry v. Coventry, 2 P. Wms. 222, and S. C. reported in Maxims of Equity ; Alfordv. Alford, 2 Eq.. Abr. 659, and Gilb. Rep. Eq. 167; Cambell v. Leach, Ambl. 740 ; and though there is no case precisely establishing that an agreement for a lease in pursuance of a power shall bind, yet the principle which governs those cases applies equally
to this. The tenant in this case is a purchaser for a valuable consideration, and he contends with a mere volunteer; for the defendant who disputes the due execution of this power, enjoys his estate under the very same instrument by which the power is created : the power exercised by tenant for life, is not exercised by him in virtue of his life estate ; it is a power derived from the fee, and only entrusted to the tenant for life by the owner of the fee, in like manner as, where a man makes a feoffment to the use of his will, he has the use in the mean time; and if in such case the feoffor, by his will, limits estates according to the power reserved to him on the feoffment, the estates shall take effect by force of the feoffment. Clere's Case, 4 Go. 17 b. 2. If the agreement in this case was a good execution of the leasing power, there is no pretence to say that that power was transgressed, unless it be so by the covenant to lay out 2001. ; but this sum was to be laid out for the benefit of the inheritance, and was not to go into the pocket of the tenant for life ; suppose the covenant had been, that the tenant should expend 2001. in draining bog, and making it valuable land, it would not be contended that such a covenant would avoid the lease ; and yet the covenant here is precisely to the same effect. 3. Admitting that this agreement was originally impeachable, yet equity will now consider it as confirmed by the tenant for life accepting rent under it, and with full notice of its existence, for so many years after he arrived at his full age, more particularly as he stood by during the whole period from 1792 to 1801, and suffered the tenant“ to expend large sums in improvements on the faith of the agreement without any objection. Styles. v. Cowper, 3 Atk. 692; Smyth v. Low, 1 Atk. 489. ...
Mr. Burston, Mr. Plunket, Mr. Gonmee, and Mr. Yelverton, for the defendant.
1. The creation of leasing powers in the tenant of the Part particular estate was intended, not only for the benefit of the estate, but for the protection of the remainder-man, and where his interest is invaded by the act of the tenant for life, in order to benefit his own estate, the court is bound to give the strictest possible construction to the power. Lord Chief Justice De Grey's argument in Cambell v. Leach, Ambl. 748. Cases have been cited of agreements under jointuring powers, &c. but there is a distinction between a power of jointuring, of charging for younger children, &c. and a power of leasing; and the latter is to be construed more strictly than the former; jointuring or charging powers relate merely to the tenant for life himself; they are incumbrances laid on the estate before the remainder-man can take any thing whatever; they are as it were limitations of the estate, prior to the limitation to the remainder-man, and it is immaterial to him in what form they are exercised, provided he is not charged beyond a certain amount. Evelyn V. Evelyn, 2 P. Wms. 660. But a leasing power is a mixed power, in the manner of exercising which the remainderman is interested, and the form of the instrument is provided for his benefit. The language of the maker of this power is, that tenant for life may make any lease or leases, and that without fine, and to take effect in possession, and not in reversion ; in all these particulars the power is exceeded. First, the word lease has a definite meaning both in legal and in common parlance, quite distinct from an executory contract of this nature; it is applicable only to cases of actual demise, and to say that such a contract was within the intention of the maker of the power, is to strain his language beyond its meaning to defeat his intention. It cannot be presumed that he meant to throw upon the remainder-man the onus of becoming a plaintiff in equity, to enforce his agreement against a litigious tenant, instead of having the short and effectual remedies provided for landlords # law; 1803.
on this construction a remainder-man might, by the mis. conduct of the tenant for life, be exposed to a variety of litigation ; for irstance, suppose the tenant for life makes an agreement first with A. and then changes his mind, and enters into another with B. both of them according to his power, and dies, the remainder-man is obliged to litigate the right to a lease both with A. and B. Again, suppose tenant for life makes an agreement within the statute of frauds, but which by some personal act he takes out of the statute quoad himself; (as for instance a parol agreement in part performed by tenant for life) shall the remainder-man be bound in such a case? many other cases of inconvenience arising from this construction might be put. Whereas the meaning and intent of the maker of the power was, not to impose any inconveniences on the remainder-man, but to provide that he should always know what the charges were which had been made for his benefit. Besides, this power is exceeded by the covenant to lay out the sum of 2001. in improvements ; this is in effect a fine, and has the injurious operation with respect to the remainder-man, which the maker of the power designed to guard against; its operation must necessarily be to diminish the rent reserved below what the power requires, for it cannot be imagined that the tenant would give the best improved rent and pay this sum also. Again, this is an agreement for a lease not taking effect in possession, but to commence at a future day, and therefore void under the power.
v 2. Contracts of this nature to be valid, ought to be mu-
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[The Lord CHANCELLOR having expressed some doubt, whether the expression here referred to had not been improperly ascribed to Lord Chief Justice De Grey, it was observed at the bar, that in a former part of the same report, (p. 746) his Lordship is made to put the question, “ Whe“ther the remainder-man could compel the lessee to per“ form such a lcase to the extent of the power, and in “ the manner prayed by the bill in that case?” in answer to which it was said not to be an objection to that bill if he could not; and the instance of a contract between an infant and an adult was cited ; in which the latter is bound, though the former was not.
Lord CHANCELLOR. That case is no answer to the difficulty raised; it is the peculiar privilege of infants for their protection, that though they are not bound, yet those who enter into contracts with them shall be bound, if it be prejudicial to the infant to rescind the contract.]
3. There is such a vagueness and uncertainty in this contract, that it cannot be carried into specific execution in all its parts, and is therefore wholly void. The rent, on the face of the agreement is uncertain, and to this day nothing has been done to reduce it to certainty. Then the covenant to lay out money in houses, buildings, and permanent and useful improvements, is so loose and uncertain, that it is impossible for the court to decree a specific execution of it. Mosely v. Virgin, 3 Ves. Jun. 184. This is therefore not merely a defective execution of the power, (which under circumstances, equity would relieve) but a non-execution, which equity will not help. Tollet v. Tollet, 2 P. Wms.