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1803.

SHANNON

V. BRADSTREET.

1. The creation of leasing powers in the tenant of the 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 at law;

1803.

SHANNON

v. BRADSTREET.

on this construction a remainder-man might, by the misconduct of the tenant for life, be exposed to a variety of litigation ; for instance, 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,

2. Contracts of this nature to be valid, ought to be mutually binding: but it follows from the opinion of Lord Chief Justice De GREY, (Campbell v. Leach, Ambl. 749) that the remainder-man could not on his part enforce the contract of the tenant for life. VOL. I.

I

1803.

SHANNON

BRADSTREET.

[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 lease 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. 490.

1803.

Lord CHANCELLOR.

SHANNON

BRADSTREET.

Jan. 31.

I have looked into the pleadings in this cause, and the cases which were cited, and I am of opinion that I ought to continue the injunction to the hearing. This is the only order that I can regularly make now; the parties will act on it as they see fit. (His Lordship then stated the facts of the case and observed that the endorsement on the draft of the lease by Sir Samuel Bradstreet was a complete approbation of the lease and a direction that possession should be given in conformity to it, provided Shannon entered into the short memorandum required ; that all the terms of the agreement were thus completed except the ascertaining the rent by an admeasurement of the lands, and that the memorandum was completely accepted by Sir Samuel Bradstreet; His Lordship then proceeded :)

The first and most important question in this case is, whether a contract of this description, binds the remainderman, for that it bound Sir Samuel cannot be controverted ; there can be no doubt of that ; it is as complete an agreement as can be made ; completed by the possession in pursuance of the contract. If Sir Samuel had been living at this day, and there had been an enjoyment of the plaintiff, and the other circumstances as stated here, there is no doubt that if he had served such a notice in ejectment, he would have been restrained and compelled to execute the lease. If he had been seized in fee, no doubt Sir Simon would be bound as his heir, and the court would make a decree against him; but the question is, as Sir Samuel was only tenant for life with a leasing power (though he himself was bound, and though his assets would be bound to make recompence) whether the remainder-man be bound ? This brings the question to one of great importance, namely, whether a remainder-man be bound by the contract of a tenant for life to make a lease pursuant to his power ?

1803.

SHANNON

V. BRADSTREET.

This question is of importance in many points of view. If the remainder-man be not bound in such cases the tenant for life is put into a very awkward situation : a contract of some kind he must make before he can make an occupation lease ; he must agree

with the tenant upon the terms; the tenant must prepare himself to take possession, for co lease can be made but in possession; so that the whole contract must be complete on both sides before a lease can be made ; it is evident therefore, that some contract must precede; and if that is to be subject to the uncertainty of not being carried into execution, if the tenant for life should die in the mean time, it will be very disadvantageous to the letting of estates under such powers.

Now it is decided in cases almost without number, that contracts for jointures will bind the remainder-man, though made only in pursuance of a power to make jointures. Contracts for valuable consideration to execute a power to make a charge of any description under a power, are also binding on the remainder-man. Voluntary executions, if one may so term them, where there has been an imperfect execution, but upon a meritorious consideration, have been also held to bind; as in the case of provision for wife or children, or for payment of debts ; so in the case of a will where it was executed in the presence of two witnesses and where three were necessary; it has been held to be good in equity in Wilkie v. Holmes, 1752, (a) which has been acted upon ever since.

(a) Wilkie v. Holmes, April 16 and 20, 1752. On a bill by creditors. By settlement power was given to husband avd wife by deed, and to the survivor by will, to be duly executed, to charge the lands settled with 3,000l. such charge by will to be only for payment of their or either of their debts, or for younger children. The wife surviving, by will executed in the presence of two witnesses charged the estate with her husband's debts and her own debts, and 700l. a piece to two daughters, if her ersonal estate should be insufficient for those purposes. Lord HARDWICKE, CHANCELLOR, was of opinion that the will was not duly executed within the

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