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OBSERVATIONS ON LEASES.
The importance of Leases, viewed as a branch of Conveyancing, is but little, yet few deeds require more care and attention in their preparation. To give forms applicable to the many provisions which may be required to meet the circumstances of the various cases which may occur, is more than can be ex. pected in the largest treatise on the subject, and very far beyond the scope of this work; and even if it could be done, the draftsman must, after all, rely principally upon that care and thought which would enable him, if at all conversant with the language of conveyances, to give clear expression to the intention of the parties without that assistance.
As leases do not, generally speaking, form part of the title to property, it is not necessary or usual to insert any recitals in them, nor need the premises be so minutely described as in a conveyance. Any simple general description which will identify them is sufficient, and where the premises consist of many different pieces of land or houses, it will be found most convenient to describe them in a schedule, and
not in the body of the lease. Leases of land Where the lands are in mortgage at the creation in mortgage.
of the lease, it will be necessary, in order that the lessee may have a good title, that the concurrence of both the mortgageeand mortgagor should be obtained, even though the mortgagee should not have taken possession, for a lease by the mortgagor alone would be no defence to an ejectment brought by the mort
A. B. agrees to let, and the said C. D. agrees to become tenant of the before-mentioned farm, lands, and premises, for the term and upon the conditions hereinbefore stated, (and to be contained in the lease and counterpart, to be forthwith prepared and executed by them, at the joint expense of the said A. B. and C. D.) As witness their hands, this day of,” &c.
gagee, who, notwithstanding such lease, might turn the tenant out of possession ; and, on the other hand, a mortgagor, upon redeeming, would be entitled to set aside any leases granted by the mortgagee without his concurrence.k
It should not be overlooked in the preparation of such leases, that the lessee's covenants, if entered into with the mortgagor, will not run with the land, they ought, therefore, to be entered into with the mortgagee, his heirs and assigns, or as the mortgagor would, on redemption and reconveyance of the premises, become the assignee of the mortgagee, he would in that character be able to sustain his action on the covenants.
The mortgagee cannot, of course, be expected to enter into covenants with the lessee, who must, therefore, rest satisfied with the personal covenants of the mortgagor.
In leases prepared under powers, great care must be taken to comply with the terms upon which they are authorized to be granted, for without such compliance, a lease would be voidable by any person interested in the reversion who was not a party to it.
A lessee has at law as absolute a power of disposi- Restraint tion over his estate, as the owner of any other inte- upon assignrest in property, and, therefore, if it is wished to restrain him from assigning, a provision must be inserted in the lease for that purpose, which, if intended to apply to an underlease, must be made expressly
i Keech v. Hale, Dougl. 21; Thunder v. Belcher, 1 East, 449.
* Hungerford v. Clay, 9 Mod. 1.
i Webb v. Russell, 3 T. R. 393; Stokes v. Russell, ibid. 678. The observations above were written with a view to the case of leases where the mortgage is in fee, for if the mortgage were for a term, as it would merge in the reversion on a reconveyance to the mortgagor, he could not be considered as the assignee of the mortgagee's estate.
to extend to that species of conveyance,m as an underlease is not considered as an assignment; and, on the other hand, an assignment is not considered a breach of the provision against underleasing.
These provisions are construed very strictly, insomuch that the restraint against assignment has been held not to extend to assignments by operation of law, unless expressly extended to them ;" and that if licence be once given, (even if but in a qualified way, as with reference to part of the land only,) the restraint is gone for ever. In the same spirit it has been held that an assignment subsequently avoided by the bankruptcy of the lessee worked no forfeiture, and that if the lessee, by conveyance from the assignees under his own bankruptcy, became entitled to the lease, he might thenceforth hold the premises free from the restraint against assignment, and it has also been held that a deposit, by way of mortgage, is not a breach of the provision against as
signment. Equitable It may be useful to mention here, that the subject mortgages of of equitable mortgages by deposit of a lease has leaseholds.
recently been the subject of discussion. In a case in 3 Brown's Chancery Cases, 166, Lucas v. Comerford, it was decided that a depositee of a lease was compellable in a court of equity at the suit of the Jessor to take an assignment of the lease, in order to give the landlord a remedy at law against him on the covenants. This doctrine was recognised by the Vice-Chancellor in 1835,' when he made a decision
in conformity with it; but in a very recent case, he expressed considerable surprise at his former deci. sion, and made a decree in direct opposition to it. Thoughi, till further adjudication on the subject, the latter case must be considered as law, persons accepting the deposit of a lease as a security for a debt, will do well to see that the rent is regularly paid, lest it should turn out that all the security in the case was their becoming sureties to the landlord for his rent.
Upon the bankruptcy of a lessee, the lease is not Effect of divested out of him, unless the assignees elect to take lessee's bank
ruptcy. it, and consequently his right to vote as a lessee under the 2d Will. IV., c. 45, would not be affected by the bankruptcy till the assignees have made their election; and the lessee, (if the assignees do not elect to take it,) continue liable to the rent accruing subsequent to the act of bankruptcy.
It need scarcely be observed, that where a pre- Stamps. inium is paid for the granting a lease, it becomes liable, (certain particular cases excepted,) not only to the stamp, according to the amount of the rent, but also to an ad valorem duty on the premium, on the same scale as on the consideration for a purchase, in which light it is considered.
There has been no direct decision upon the point, but it has always been considered, and I cannot believe that a decision will ever be made contrary to that opinion, that no additional stamp is chargeable in respect of the increased rent received for ploughing up pasture, &c."
Rents are in all cases apportionable where the Apportionright to receive them changes at any other time than ment of rents. one of the reserved days of payment, either by the death of a tenant for life, or the determination of the interest of any person during his own life; but the apportionment is affected differently in different cir
• Moors v. Choat, 8 Sim. 508.
cumstances. Thus, under the 15th section of 11th Geo. II., cap. 19, (explained by 4th Will. IV., cap. 22, sec. 1,) where the lease was determined by the death of the lessee, whether as being tenant for life, or having as tenant in tail,' or donee of a power, created a lease, which, though in itself invalid from want of compliance with the requisitions which were necessary to give it validity, was good for the life of the granter, the representatives of such lessor might recover a proportionate part of the accruing rent; and under the same sections, where the lease determined in the lifetime of the lessee, by the death of any life or lives for which he was holding, a proportional rent is recoverable by such lessor. But under the 2d section of 4th Will. IV., cap. 22, the apportionment is affected in a different way, for in order to free the tenant from any questions between the lessors, he is permitted to pay the whole rent to the heir, from whom the party entitled to the proportionate part may recover it. That act was passed on the 16th June 1834, and is, therefore, applicable only to rents reserved by leases granted after that period. It gives apportionment of rent to all per. sons whose interests are determined by their death, or any other event during the continuance of the leases, such lease having been granted by a tenant for life or in fee, or under any power, but it subjects such apportioned part to an equitable proportion of the changes affecting it.
Under these two acts it will be found, that in all circumstances where an express stipulation to the contrary has. not been made, rent is put upon the same footing as interest, and that persons will be entitled to it during the whole time of the continuance of their estate as if it had accrued de die in diem.