LEASES. demises by copy of court roll for lives or for years are sufficient lettings to farm within the statute (a). Of wife's But the demise under the authority of that act must estate under be made by deed indented (b), as in general cases after mentioned. stat. 32 Hen. 8, c. 28. But the lease indenture. 3d. The property demised must be of an estate of must be by inheritance in the wife, or in her and her husband jointly. If, therefore, the inheritance be in the husband, If the wife the wife having an estate for life only, a lease under be seised for the statute will not bind her (c). life only, such estate is not within the act. does not bind remainder. And it must be observed that the statute renders valid the leases granted under its authority, against the husband and wife and their heirs only, so that when the inheritance determines, as in the instance of an intail by a failure of issue, such leases also determine, and are void against the persons in remainder or reversion, except such remainder or Exception. reversion be limited to or be in the lessors, or one of them, in either of which cases the leases will be valid during the term (d). The statute requires the lease to be by indenture. 4th. The lease must be made by deed indented;A deed poll, therefore, is insufficient; but if the deed be actually indented, which supposes a counterpart, it is immaterial whether the deed begins or not, as is usual, with the words, "this indenture" (e). 5th. The lease must be sealed by the wife, and she and her husband must be named parties to it. 6th. The lease must be a lease in possession and Also to he a (a) Moor, 759. Tustian v. Roper. Jones, 29. Co. Litt. 44 6. The Dean and Chapter of Worcester's case. 6 Rep. 37. (6) Gilb. (d) Touchst. 280. Ten. 180. Godb. 9. (c) Co. Litt. 44, note 2. (e) Co. Litt. 143 b. 229. And to be sealed by the wife. lease in possession. VOL. -I. H LEASES. Of wife's estate under stat. 32 Hen. 8, c. 28. When leases commence that have dates, or impassible dates, or no not in reversion, or according to the statute, to commence from the making, or the day of the making of it. As leases in possession and in reversion under the statute, and under private powers, are in relation to this requisite subject to the same rules, the consideration of both must be here blended. If, then, the lease have no date or an impossible one, it commences from the delivery. If the lease have a proper date and be delivered upon the same day, without mentioning when it dates, or are shall begin, it commences from the delivery (a), which will be presumed to have been made on the day of the date, until the contrary be proved (b). ante dated. And ofleases sion. If the lease be made for twenty-one years, or for three lives, from the making, or from its sealing and delivery, or from henceforth, it will commence from delivery, whether it be with or without date (c). And if a lease be ante dated, and the contents imin possession and in rever- port that it was to begin from a day subsequently to its date, still if the deed were not executed until after that day it would be good as a lease in possession, since its legal effect and operation commenced from, and not before its execution (d). But in all cases where a power authorises leases to be granted in possession, if the lease granted in pursuance of it happen to be made to commence and actually commences upon the day subsequent to its date, or after the determination of a prior unexpired (a) Co. Litt. 46 b. (b) Cro. Jac. 264. Hundred of Gawtry. Hob. 140. Co. Litt. 46 b. 740. 4 East, 477. 10 East, 427. (c) Norris v. the (d) Ambl. lease, such new lease will be void; because it is a LEASES. lease in reversion (a). Of wife's The strictness which prevails upon this subject estate under will appear from the following case: A, tenant for life, had a power of leasing for twelve years in possession and not in remainder, reversion, or expectancy. A, by indenture dated and executed upon the 29th day of March, 1798, demised the lands in tillage from the 13th of February preceding, the pasture grounds from the 5th of April next following, and the residue of the premises from the 12th of May then next, for twelve years from those several periods. Although the lease was authorised by the custom of the country, yet the Court decided that the lease was void in toto, it being a lease in reversion, since it was made to commence as to two third parts of the premises from periods subsequently to the date and execution of the lease, which was contrary to the express words of the power (b). stat. 32 Hen. 8, c. 28. which sub mence from and from the days of the In the ancient cases much nicety and subtlety In relation to prevailed in instances when the leases were made to ject leases begin from the dates, and when from the days of the made to com dates, and it was understood from those cases that the dates, the words from the date included that day, so that a lease containing these expressions by beginning upon dates, are that day, would not be a lease in reversion; hence considered. a lease so made under the authority of the statute would be good and binding. It was also understood from those cases that the words "from the day of the date" excluded that day, so that such a lease would not be authorised by the statute as being a (a) 5 Term Rep. 567. (b) Doe d. Allen v. Calvert. 2 East, 376. LEASES. Of wife's estate under stat. 32 Hen. 8, c. 28. lease in reversion, and it would not, therefore, bind the wife or the persons claiming under her. The cases above referred to cannot be reconciled, but they were considered by Lord Mansfield and the other Judges of the Court of King's Bench, in the case of Pugh v. Duke of Leeds, below stated, in which case those subtleties and distinctions were duly considered, and after mature deliberation upon the old decisions, the Court determined that the words "from the date," and "from the day of the date," were of the same import, and that they included the day of the date, and might or might not do so in other cases according to the subject matter; the Court justly observing, that the construction so given was in support of the deeds of parties, and to give effect to their intention; but that the other construction was a subtlety to overturn property, and to defeat that intention, without answering any good end or purpose. The case of Pugh v. The Duke of Leeds (a) was to the following effect: A lease for twenty-one years, under a power to make leases in possession for that term, was made to commence "from the day of the date." Upon a case stated for the opinion of the Court of King's Bench on the validity of the lease, as one in possession, it was decided that the lease was good:1st, upon the intention of the parties;-2dly, upon the generally received sense and acceptation of the words themselves;—and 3dly, because the word "from" might, in the common use, and even in the strict propriety of language, mean either inclusive or exclusive. (a) Cowp. 714; see also 5 Term Rep. 567. 10 East, 431. Of wife's estate under Hence it is to be inferred, that whether a lease LEASES. for years, under the statute of Henry the eighth, be made to commence from the making, or the date, or the day of the date, it will be good as a lease in possession. And with respect to leases for three lives, made under the authority of that act, and expressed to commence from the days of the dates, it is presumed that they would be good although possession were delivered on the same days (as they would be valid if possession were deferred till a subsequent period (a);) but which could not be so if the "days of the dates" were to be considered exclusive of the days upon which the leases appear to be dated; for if such were to be the construction, then as the leases were not to begin until the days next following, the operation of the livery would be suspended during the days of their dates, and the leases must, therefore, commence in futuro, viz. the next subsequent days, which the law does not allow in cases of freehold interest. In that event, therefore, a lease so made and intended to be protected by the statute, would be defeated. 7th. The leases, must not be made without impeachment of waste. If a lease be made without impeachment of waste in express terms, there can be no doubt as to its invalidity against the wife and her issue. The consequence will be the same if it be so framed as to prevent the lessee from being made liable to waste; so that if the lease were made for life, with remainder to B for life, it would not be authorised by the statute; because during the continuance of the remainder to B, the first tenant (a) Freeman v. West, 2 Wils. 165. stat. 32 Hen. 8, c. 28. The leases must not be without impeachment of waste either by express provision or by operation of law. |