tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seized of an estate of feesimple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other person) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding. 1. The lease must be by indenture, and not by deed-poll or by parol. 2. It must begin from the making, or day of the making, and not at any greater distance of time." 3. If there be any old lease in being, it must first be absolutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years, or three lives, and not for both. 5. It must not exceed the term of three lives, or twenty-one years, but may be for a shorter term. 6. It must be of corporeal hereditaments, and not of such things as lie merely in grant; for no rent can be reserved thereout by the common law, as the lessor can not resort to them to distrain. 7. It must be of lands and tenements most commonly letten for [320] twenty years past; so that if they had been let for above half the time (or eleven years out of the twenty), either for life, for years, at will, or by copy of court roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given. Disabling statute, 1 Next follows, in order of time, the disabling or restraining Eliz., c. 19. statute, 1 Eliz., c. 19 (made entirely for the benefit of the successor), which enacts, that all grants by archbishops and bish P Co. Litt., 44. 9 But now, by the statute 5 Geo. III., c. 17, a lease of tithes or other incorporeal hereditaments, alone, may be granted by any bishop, or any such ecclesi (36) By various acts of Parliament, and also frequently by private settle ments, a power is granted of making leases in possession, but not in reversion, for a certain time; the object being, that the estate may not be encumbered by the act of the party beyond a specific time. Yet persons who had this limited power of making leases in possession only, had frequently demised the premises to hold from the day of the date; and the courts, in several instances, had determined that the words from the day of the date excluded the day of making the deed; and that, of astical or eleemosynary corporation, and the successor shall be entitled to recover the rent by an action of debt, which (in case of a freehold lease) he could not have brought at the common law. consequence, these were leases in reversion, and void. (See Cro. Jac., 258; 1 Buls., 177; 1 Rol. Rep., 387; 3 Buls., 204; Co. Litt., 46, b.) But this ques tion having been brought again before Lord Mansfield and the Court of King's Bench, it was established that from the day might either be inclusive or exclusive of the day, and, therefore, that it ought to be construed so as to effectuate these important deeds, and not to de stroy them. (Pugh v. Duke of Leeds, Cowp., 714; Freeman v. West, 2 Wils., 165.)-[CHRISTIAN.] (Vide ante, p 140, n. 2.) ecclesiastic of (which include even those confirmed by the dean and Leases by ch pter; the which, however long or unreasonable, were good al persons at ommon law) other than for the term of one-and-twenty yes, or three lives, from the making, or without reserving the usual rent, shall be void. Concurrent leases, if confirmed by the dean and chapter, are held to be within the exception of this statute, and therefore valid; provided they do not exceed (together with the lease in being) the term permitted by the act. But, by a saving expressly made, this statute of 1 Eliz. did not extend to grants made by any bishop to the crown; by which means Queen Elizabeth procured many fair possessions to be made over to her by the prelates, either for her own use, o with intent to be granted out again to her favorites, whom she thus gratified without any expense to herself. To preve t whichs for the future, the statute 1 Jac. I., c. 3, extends he prohibition to grants and leases made to the king, as well as to any of his subjects. Extendeo to inferio Next comes the statute of 13 Eliz., c. 10, explained and enforced by the statutes 14 Eliz., c. 11 & 14, 18 Eliz., c. 11, and corpora43 Eliz., c. 29, which extend the restrictions, laid by the last- tions, sole mentioned statute on bishops, to certain. other inferior corpo- gate. rations, both sole and aggregate. From laying all which to r Co. Litt., 45. (37) The law of concurrent leases is somewhat involved, by reason of the conflict between the ancient common law and the several statutes passed on the subject; but the practical results are as follow: If a bishop have made a lease for twenty-one years, under the 32 Hen. VIII., he may make a fresh lease for twenty-one years from the making thereof, at any time exceeding a year before the expiration of the first, which will be valid upon being confirmed by the dean and chapter. But there can not be two leases in the same way running for lives at the same time, nor one lease for lives and another for years; they must be both of the latter description, or they can not coexist, or concur in conferring an interest upon the lessee. If the second lease be granted to any other than the lessee in the first,, the lessor may lose his remedy by distress for the recovery of his rent during the continuance of the old lease, because the old lessee may pay his rent to the new lessee, who is become the reversioner, and against whom the lessor can only proceed by action of debt or cove naut. (See Bac. Ab., Leases, (E.), 3; Coleridge's Blackstone, vol. ii., p. 320, n. 13.) The renewal of ecclesiastical leases is $ 11 Rep., 71. regulated by the statutes 6 & 7 Will. and aggre [321 j Effect of the disabling statute. [322] College Leases. gether we may collect, that all colleges, cathedrals, and other ecclesiastical or eleemosynary corporations, and all parsons and vicars, are restrained from making any leases of their lands, unless under the following regulations: 1. They must not exceed twenty-one years, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon.38 3. Houses in corporations or market-towns may be let for forty years; provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair; and they may also be aliened in fee-simple for lands of equal value in recompense. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste.t 6. All bonds and covenants tending to frustrate the provisions of the statutes of 13 & 18 Eliz. shall be void. Concerning these restrictive statutes there are two observations to be made. First, that they do not, by any construction, enable any persons to make such leases as they were by common law disabled to make. Therefore, a parson or vicar, though he is restrained from making longer leases than for twenty-one years, or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent.u3 Secondly, that though leases contrary to these acts are de clared void, yet they are good against the lessor during his life, if he be a sole corporation; and are also good against an aggregate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for the benefit of the successor only; and no man shall make an advantage of his own wrong.w There is yet another restriction with regard to college leases, by statute 18 Eliz., c. 6, which directs that one third of the old rent then paid should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6s. 8d., or a quarter of malt for every 5s. ; or that the lessees should pay for the * Co. Litt., 45. u Ibid., 44. W Ibid., 45. (38) And where a part of land usual- years, with the consent of the bishop ly let for a certain rent is leased, the and patron. (See 1 & 2 Geo. IV., c. ancient rent must be reserved pro ratâ. 23, and 6 & 7 Will. IV., c. 115, s. 21.) (39 & 40 Geo. III., c. 41.) As to what are accustomed rents and reservations, (39) If the lease has not been con see 2 Ad. & El., 705. Of waste lands firmed by the ordinary, the acceptance not previously demised, there could be of rent by the successor will not ratify no accustomed rent, and the enabling the lease for the rest of the term which statute did not apply. (7 Moore, 258.) may be unexpired at the time of the But the General Inclosure Act, 41 Geo. death or cession of the lessor (Bro. III., c. 109, s. 28, authorizes leases of Abr., Acceptance, pl 26.) inclosure allo ents for twenty-one same according to the price that wheat and malt should be sold for in the market next adjoining to the respective colleges on the market-day before the rent becomes due. This is said to have been an invention of Lord-treasurer Burleigh and Sir Thomas Smith, then principal secretary of state, who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the new-found Indies (which effects were likely to increase to a greater degree), devised this method for upholding the revenues of colleges. Their foresight and penetration has in this respect been very apparent; for, though the rent so reserved in corn was at first but one third of the old rent, or half of what was still reserved in money, yet now the proportion is nearly inverted; and the money arising from corn rents is, communibus annis, almost double to the rents reserved in money.1o 41 non-resident The leases of beneficed clergymen are further restrained, in Leases by case of their non-residence, by statutes 13 Eliz., c. 20, 14 Eliz., clergy rec. 11, 18 Eliz., c. 11, and 43 Eliz., c. 9,11 which direct, that if strained. any beneficed clergyman be absent from his cure above fourscore days in any one year, he shall not only forfeit one year's profit of his benefice, to be distributed among the poor of the parish; but that all leases made by him, of the profits of such benefice, and all covenants and agreements of like nature, shall cease and be void;" except in the case of licensed pluralists, who are allowed to demise the living, on which they are nonresident, to their curates only; provided such curates do not absent themselves above forty days in any one year." And [323] * Strype's Annals of Eliz. (40) The price of a quarter of wheat houses of residence, or the buildings, being at present near 50s., and the col- gardens, orchards, and appurtenances leges receiving a quarter of wheat, or necessary for the convenient occupaits value, for every 13s. 4d., which tion of the same, belonging to any benthey are paid in money, the corn rent, efice, and in which spiritual persons are from the present price of wheat, will by the order of the bishop to reside, or be in proportion to the money rent as which may be assigned by the bishop as four to one. But both these rents residences for curates, shall be made in united are very far from the present writing, and shall contain a condition value. Colleges, therefore, in order to for avoiding the same, upon a copy of obtain the full value of the term, take a such order or assignment being served fine upon the renewal of their leases.- upon the occupier or left at the house, [CHRISTIAN.] or shall be void; and persons holding possession thereof after the day on (41) These statutes were repealed by which such spiritual persons are direct the 43 Geo. III., c. 84, and further ed to reside, upon notice to that effect, amendments were made by the tempo- forfeit 40s. for every day they so hold rary statutes, 54 Geo. III., c. 54 and over. 175, and the general act of the 57 Geo. III., c. 99, which repealed all former (42) But by the 57 Geo. III., c. 99, acts on this subject. This act was it- all these statutes which vacate leases by self repealed by the 1 & 2 Vict., c. 106. non-residence, are repealed. (See ante, vol. i., p. 392.) By the 59th section of the last-mentioned act, (43) The letting of ecclesiastical prop all contracts or agreements for letting erty has been facilitated by two recent 5. Exchange at common law. Entry. thus much for leases, with their several enlargements and re strictions.y 5. An exchange is a mutual grant of equal interests, the one in consideration of the other. The word " exchange" is so individually requisite and appropriated by law to this case, that it can not be supplied by any other word or expressed by any circumlocution. The estates exchanged must be equal in quan tity; not of value, for that is immaterial, but of interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like." And the exchange may be of things that lie either in grant or in livery. But no livery of seizin, even in exchanges of freehold, is necessary to perfect the conveyance; for each party stands in the place of the other and occupies his right, and each of them hath already had corporeal possession of his own land. But entry must be made on both sides; for, if either party die before entry, the y For the other learning relating to leases, which is very curious and diffusive, I must refer the student to 3 Bac. Abridg., 295 (title Leases and Terms for Years), where the subject is treated in a perspicuous and masterly statutes. The first (5 & 6 Vict., c. 27) contemplates leases for farming purposes, and enables incumbents of benefices, with the concurrence of the patron and bishop, to lease any part of the glebe or other lands and agricultural buildings for any term not exceeding fourteen years (or, if the lessee covenant to improve the land, twenty years), in possession, at a rack rent; such lease to contain a covenant against assignment or under-letting without the consent of the incumbent, patron, and ordinary, a covenant to insure, and other covenants mentioned in the act. Certain surveys and maps are required to be made, and the act denies effect to any surrender of a lease granted under its provisions, until the concurrence of the incumbent, patron, and ordinary is obtained. with the consent of the Ecclesiastical Commissioners for England; and in case of a lease by an incumbent of a benefice, with the consent of the pa tron. The act also authorizes, under similar restrictions, the grant of mining leases, and of leases of running water, way-leaves, water-leaves, and other easements over land belonging to ecclesiastical corporations, for any term not exceeding sixty years; and it provides for the application of the improved rents obtained by means of leases made under its provisions. (44) A lease for twenty years may, of course, be exchanged for another for one hundred or one thousand years. A tenant in tail, or of a defeasible fee, or a husband seized in right of his wife, may exchange in fee with a tenant in feeThe statute 5 & 6 Vict., c. 108, au- simple, and the exchange will be good thorizes ecclesiastical corporations, ag- until it is avoided; and occupation of gregate or sole (except any college or the lands taken in exchange by the is corporation of vicars choral, priest vic- sue in tail, or other party entitled, to ars, senior vicars, curates and vicars, or avoid the exchange, is a confirmation minor canons, and any ecclesiastical hos- of the exchange. (Co. Litt., 50; Perk., pital, or the master thereof), to lease § 280, 289.) Joint-tenants may extheir corporate lands or houses (except houses of residence and gardens, &c.) for any term not exceeding ninety-nine years, in possession, for building or other improvement; such leases to contain certain covenants, on the lessee's part, specified in the act, and to be made change with a sole owner, and may take the new estate as tenants in common. (Shepp., Touchst., 296.) And tenants in common may exchange with a sole owner. (Lofft, 414. See 2 Wils., 468.) |