LEASES. of the two Judges of the Court of King's Bench was reversed, and the lease was in consequence avoided. By husband and wife un- The reason for the reversal, as I collect it, was, that der powers in the right of re-entry reserved by the lease was not private conveyances. When old leases not re ceived to explain a new What covenants, &c. ought to be inserted when the powers are silent upon those subjects. And when the powers require the immediate upon the rent falling in arrear, but was suspended until a search should be made for a sufficient distress. The case of Core v. Day (a), before referred to, was considered to be in point, and was approved of by the majority of the Judges, who were also of opinion, that the old leases not being referred to by the new one or the power, and the new lease not being ambiguous but clear and precise, were inadmissible to explain the new lease. This judgment has been appealed from to the House of Lords, and the matter now remains sub judice. A suit also has been instituted in the Court of Chancery, in order that equity may supply the above defect in the execution of the power. If the power merely give directions as to the rent to be reserved, in that case every covenant and clause should be inserted for the recovery of it for the benefit of the remainder-man, as a covenant to pay the rent, a condition of re-entry, and a counterpart should be executed by the lessee (b). And if the lease be a building lease, it is presumed that a covenant to rebuild should be inserted (c). When the power goes farther, and requires all clauses, covenants, &c. to be reserved, as are usual insertion of in such like leases, and that the leases should not be all usual cowithout impeachment of waste, care must be taken that such leases include all such particulars, and venants, &c. (a) 13 East, 118. (6) Taylor v. Horde, 1 Burr. 60-125. (c) Jones v. Verney, Willes, 175. that the deeds are not so framed as to enable the LEASES. lessee to commit waste; also that no unusual covenant on the part of the lessor is inserted, as to rebuild, &c. if the premises be blown down or destroyed by fire, which has been determined to be an unusual covenant (a). By husband and wife under powers in private conveyances. No unusual covenant on should be stances un der which lessor's cove nant to re new did not invalidate the lease. But in the case of Doe v. Bettison, before in part the part of stated (b), the lessor, in consideration of £1000 to be the lessor laid out in repairs by the lessee, covenanted that he inserted. would at all times during his life upon request, at Circumthe lessee's expense, renew the lease for twenty-one years at the same rent, &c.; yet since the Jury, who had found the rent reserved to be the best, did not find the covenant to be unusual (the power in that case having required the insertion of such covenants, &c. as were generally inserted in leases according to the custom of the country), and as upon renewal, if the then best rent should not be reserved, the renewed lease would be void, and the person in remainder might bring an ejectment and recover the premises, the Court determined that such covenant did not invalidate the then present lease. If leases in reversion are granted when leases in possession only are authorised, that circumstance will invalidate them. It is therefore necessary to ascertain when powers warrant the granting of leases in possession and when in reversion. The following conclusions may be probably drawn from the several cases upon the subject: Suppose the estate in settlement to be in possession, and the power to be general to grant leases for twenty-one years, but not expressing whether (a) Ambl. 740. Ellis v. Sandham. 1 Term Rep. 705. (b) Supra, p. 126, and see 12 East, 305. As to leases in possession and rever sion. When leases in possession only can be granted. LEASES. By husband and wife under powers they should be granted in possession or reversion; in that case, leases in possession only can be granted. The reason is, that if under the power leases in in private reversion were permitted, so many of them might be conveyances. made as in effect to disinherit the persons in reversion or remainder (a). And if there be a subsisting term for years at the time of the power, or if not, and the donee of the power make a lease for 21 years, he may in either case, during the term, make another lease for 21 years, to commence immediately; provided it give no beneficial interest during the subsisting lease, because both the terms are running out together, and neither of them can exceed the term of 21 years (b). When leases in reversion may be under a ge If the settled estate be reversionary, i. e. subject to terms for lives or for years, and the power to granted lease be general for twenty-one years, it seems that neral power. leases in reversion, viz. to commence from the expiration of those terms, may be granted, and from necessity, in order that the power may not by the contrary construction be rendered nugatory; a presumption also arising from the state of the property, that the creator of the power, from his knowledge of the subsisting terms when he granted the power, intended to enable the donee to grant leases in reversion (c). Not when the power restricts them to leases in possession. But if the power expressly declare that leases in possession only shall be granted, it seems that whether Slocomb v. Hawkins, Yelv. Shecomb v. Hawkins, Cro. Hard. 412. Read v. Nash, (a) Fitzwilliam's case, 6 Rep. 33. 222. Sussex v. Wroth, Cro. Eliz. 5. Jac. 318. (b) Edwards v. Slater, 1 Leon. 147. Goodtitle v. Funucan, Dougl. 565. deaux, 10 East, 185. (c) 2 Roll. Abr. 261. pl. 1 Lev. 168. Opey v. Thomasius, T. Raym. 134. 1 Leon. 35. Coventry v. Coventry, Comyn, 312. Northampton's case, Dy. 357. 8. tion in re the estate be reversionary or in possession, leases in LEASES. possession alone can be granted, because the power By husband and wife is express and obligatory (a). under powers When a power is given to grant leases for lives in private or years in reversion, if the power be exercised by conveyances. the grant of a lease for lives, then, since no freehold Construcinterest can be made to commence in futuro, the gard to lease, in a sense reversionary, will be considered as a concurrent lease, i. e. a lease to commence in possession when the reversion falls in, but beginning in interest immediately from its date, and consequently it will be a valid lease (b). leases for lives under a power to grant in reversion. How leases should be under In cases where the power authorises leases in possession, and also leases in reversion, it can only be granted properly executed reddendo singula singulis, viz. by the grant of leases in reversion of lands not then in possession, and of leases in possession of the lands session and then in possession (c). authorising leases in pos reversion. of powers of leasing by the estate, alienation of A feoffment, fine, conveyance, or surrender by Destruction the tenant for life of his whole estate, will destroy the of leasing, because the power being appower pendant to the estate for life, that estate being gone, all adjuncts expire with it (d). But with respect to married women, if they do not join with their husbands in a fine or recovery, it follows from what has except when been before said in regard to the wife's right of tion is by the entry under the statute of Henry the eighth, that if husband they enter after the deaths of their husbands, in wife's estate. cases where the latter have aliened the estates of the former, the re-possession of such estates will revive the aliena alone of his Husband alone may charge his wife's estate during their joint lives, CHAPTER IV. THE subjects considered in this chapter are— I. The power of the husband to charge his wife's real estates with the payment of his debts, &c. II. His wife's equity to have her estates so charged exonerated out of his assets; and III. The effect when the equity of redemption is reserved, not to the wife but to the husband, &c. I. From the interest which the husband acquires by the marriage in the real estates of his wife, it follows that he singly can charge them at law with his debts during their joint lives, but if he were the or during his survivor, and intitled to be tenant by the curtesy, interest as curtesy. tenant by the then the charges would continue during his life; at the conclusion of which period they must necessarily expire with his interest in the estates. If she join with him in the transac tion, and it be by mere deed, she But if the wife join with her husband in incumbering her estate by demise for a term of years, by mere deed without a fine, the lease will be so far good as to be voidable only by her after her huswill be bound band's death, so that it may be confirmed by her by by her conacceptance of rent, &c. as has been before mendeath by actioned in treating upon leases granted by her and cepting rent. her husband at common law (a). firmation after his Thus, in Goodright v. Straphan (b), A, in right of B, his wife, being seised in fee of the reversion of |