and the person to whom such lands shall be so conveyed, or other the person so for the time being seised of or entitled, shall and may from time to time make or bring all such distresses, actions, suits, or entries, for non-payment of such rent or reservations, or for non-performance of the covenants, conditions, and agreements, in such lease respectively reserved and contained, as could, in case such conveyance had not been made, have been made or brought by the person making such conveyance, or other the person for the time being seised of or entitled to the reversion expectant on the determination of such lease; and that in all such distresses, actions, suits, and entries, the rent, reservations, covenants, conditions, and agreements, in such lease reserved and contained on the part of the lessee, his exccutors, administrators, or assigns, shall be deemed and taken to be annexed to an immediate reversion vested in the person to whom such lands shall be so conveyed, or other the person for the time being so seised of or entitled to such lands (t).

And if at the time of any commutation or enfranchisement under the act of 4 & 5 Vic. c. 35, or under the act of 6 & 7 Vic. c. 23, of any lands, there shall be subsisting in such lands any lease, (not being an underlease,) the lessee under such lease, his executors, administrators, and assigns, shall pay, observe, and keep, to and with the person for the time being seised of or entitled to the lands so commuted or enfranchised, and his executors or administrators, the rent, reservations, covenants, conditions, and agreements, respectively reserved and contained in such lease, or such and so many or such part of the rent, reservations, covenants, conditions, and agreements, respectively reserved and contained in such lease, as are or ought to be thenceforth respectively paid, observed, and kept, in respect of the lands so commuted or enfranchised; and the person for the time being seised of or entitled to the lands so commuted or enfranchised shall and may from time to time make or bring all such distresses, actions, suits, or

(t) Sect. 9.

entries, for non-payment of such rent or reservations, or for non-performance of the covenants, conditions, and agreements, in such lease respectively reserved and contained, as could have been made or brought by the person who would for the time being have been entitled to the lands so commuted or enfranchised in case such commutation or enfranchisement had not been made; and in all such distresses, actions, suits, and entries, the rents or reservations, covenants, conditions, and agreements, in such lease reserved and contained on the part of the lessee, his executors, administrators, or assigns, shall be deemed and taken to be annexed to an immediate reversion vested in the person for the time being seised of or entitled to the lands so commuted or enfranchised (u).

x.-Tenant at Sufferance.

A mere tenant at sufferance has no demisable estate; at least as against any one but himself (x).

XI.-Tenant by Elegit; Statute Merchant; Statute Staple; and Recognizance in nature of a Statute Staple.

The lease of tenant by elegit, statute merchant, statute staple, and tenant in possession under a recognizance in the nature of a statute staple, partake of the precarious nature of the lessor's interest, and is determinable at law by payment of the sum for which the lands were originally extended. But equity has sometimes adopted a different rule. In an early case (y), one Hudson gave a judgment for 4007. to the defendants, who were executors of one Short, to secure a debt of 2207. due from Hudson to Short. Hudson afterwards devised certain premises to the plaintiff, and died; and after his death the executors of Short extended a moiety of the

(u) Sect. 10.

(x) Shopland v. Rydler, Cro. Jac. 55, Arg Thunder dem. Weaver v.

Belcher, 3 East, 451.

(y) Doughty v. Stiles, Rep. temp. Finch, 115.

lands so devised, and leased the same for seven years at a yearly rent of 251. The plaintiff exhibited his bill against them to be relieved against the judgment, and to redeem the lease, and to bring the executors to an account; but it was held that the lease ought not to be impeached. The executors, however, were decreed to account for certain goods supplied by, and money received of, Hudson by their testator, and for the profits of the lands before the lease, and for the rent of 251. per annum after it. And it was further decreed, that, on paying what was due to the defendants, they should acknowledge satisfaction on the judgment, and release and convey the extended premises to the plaintiff, free from all incumbrances made by them, except the lease.

Under a fieri facias, the debtor's term for years remains in him until an actual assignment by the sheriff; and, therefore, a purchaser of it cannot make a valid lease of the legal estate before such assignment (z).

XII. Cestui que trust.

A cestui que trust, having only an equitable estate is, of course, incapable, without the concurrence of his trustee, of conferring a legal interest (a). His demise may operate by way of estoppel (b), or give a good title in equity; but such a tenancy is too precarious to be relied on; for the lessee, being deemed at law a mere trespasser as against the trustee (c), is liable to eviction at law without previous notice to quit; and must seek for redress in equity. It is the better opinion that the statute 1 Rich. 3. c. 1. is now destitute of all operation whatever (d).

For the purpose of security, therefore, both trustee and

(2) Playfair v. Musgrove, 14 Mecs. & W. 239; S. C. 3 Dowl, & Lown. 72. (a) As to leases by trustees, see post Sect. IV. of this Chapter.

(b) See as to Estoppel, ante, p. 52.
(c) Plowd. 349. Blake v. Foster, 8

Term Rep. 487. 492.

(d) 1 Rich. 3. c. 1. See the 1st Chap. in Sanders on Uses, and particularly p. 45, 4th ed.; and p. 42, 5th ed. by Sanders and Warner; and Gilb. on Uses, by Sugd. p. 67, n.

cestui que trust should concur in a demise, as in the case of a mortgagor and mortgagee (e). The trustee should "demise and lease," and, on the part of the cestui que trust, words of demise should be inserted, as well as words of consent and approbation. If there be several cestuis que trust, the concurrence of all should be obtained; for if a trustee under a will concur with some but not all of the cestuis que trust in making a lease, which recites part only of the trusts, the lessee cannot hold in opposition to the other cestuis que trust, not parties to the lease: the circumstance of the recital rendering it incumbent on him to make further inquiry, he is considered as having had notice of the title of the other claimants under the will (f).

The rent should be reserved generally during the term, without specifying to whom; leaving the law to give it its due appropriation (g).

And the covenants, to make them run with the land, should be entered into with the trustee (h).

SECTION III.-WITH REFERENCE то NUMBER AND

CONNECTION.

1.-Joint-tenants.

Joint-tenants, holding (according to the technical phrase) per my et per tout (i), enjoy a singular and anomalous species of tenure. During their joint ownership they constitute but one tenant of the whole land, and are then said to be seised per tout; but, for the purposes of alienation, each has an exclusive right to and dominion over a moiety; and in this sense, adopting Lord Coke's exposition (k), which is more

(e) Post, Sect. III. of this Chapter. (f) Malpas v. Ackland, 3 Russ. 273. (g) Whitlock's case, 8 Co. 69, b. 71, a.

(h) Webb v. Russell, 3 Term Rep.

393.

678.

Stokes v. Russell, 3 Term Rep.
Russell v. Stokes, 1 H. Blac. 562.

(i) Lit. s. 288. 2 Bla. Com. 182. (k) Co. Lit. 186, a.

simple and intelligible than Littleton's (1), or Blackstone's (m), must be understood the expression that joint-tenants are seised or possessed per my.

To illustrate this position: If there be two joint-tenants, and one of them make a lease of the whole land at one time, and the other make a lease of the whole land at another time of the same day, the moiety only of each joint-tenant will pass. Each of them, being seised per my et per tout, may make a lease of the whole, but no more than his moiety will be affected by it. The terms granted, as they arise from the several interests of several persons, will be several and distinct, though the same in point of duration (n). Jointtenants may, therefore, join in demising their estate, or either of them may demise his own undivided share to a stranger, or to his companion (o). So, where there are more than two, either of them alone may grant his share singly, or concur with any other or others in granting their shares jointly. If two of three, for instance, join in a lease, two undivided thirds of the land will pass (p).

Joint-tenants usually concur in demising, with one reddendum; the lessee's covenants being entered into with them and their heirs and assigns, or their executors, administrators, and assigns, according to the nature of the reversion; but without any words of severance.

We may consider the quality of a lease; first, where jointtenants concur in granting it; and, secondly, where either of them separately leases his own portion.

1. Where they concur, the lessee's interest continues notwithstanding the decease of either of the lessors, and the whole rent is payable to the survivor (q). So, if the lease be at will, the death of one of the lessors does not operate as a countermand of the tenancy, even for a moiety. All survives

(1) Lit. s. 288.

(m) 2 Bla. Com. 182.

(n) Morris v. Barry, 1 Wils. 1. And see Bellingham v. Alsop, Cro. Jac. 53. (0) Co. Lit. 186, a. Jurdain . Steere, Cro. Jac. 83.

(p) Philpott v. Dobbinson, 3 Mo. & Pa. 320.

(q) Henstead's case, 5 Co. 10, b. Doe dem. Aslin v. Summersett, 1 Barn. & Adol. 135. 140.