with her husband in the deed of demise. It is apprehended that the distinction would receive but little consideration at the present day. Indeed, we are not destitute of authority (even of later date than that of an opposite tendency) to show that a lease of the wife's land, though not executed by her, is not void, but voidable only, on her husband's death.

The position has more than once been urged in argument (v) without contradiction. So, in Broooke's Abridgment (x), it is stated, that if tenant in tail, or a man seised in right of his wife, lease lands for a term of years, and die, and the wife, or the issue in tail, accept rent, the lease is affirmed good. It is right, however, to notice, that this passage in Brooke differs from the Year Book, 21 H. 7. 38. pl. 47, of which it professes to be an abridgment, in an important particular. Conesby there said, "that a lease which was void could be made good by matter ex post facto; as if tenant in tail lease lands for years, rendering rent, and die, and the issue in tail accept the rent; or if a lease be made by baron and feme of the lands of the feme, rendering rent; by acceptance of rent, the feme and the issue in tail have made the lease which was void good." According to Brooke's Abridgment, the lease in question was made by the husband alone; but the Year Book expressly recognises the wife as a party; and it is rather singular that Conesby made no distinction between a voidable and a void interest, as appears from his declaration, that a lease which was void could be made good by matter ex post facto (y).

Later authorities, however, bearing more expressly on the point, are entitled to greater confidence. Thus, in Jordan v. Wikes (2), the husband alone had made a lease of his wife's lands for the purpose of trying the title; and the court clearly held, that it was voidable only by her after his death, and not void. From a modern case (a) also we may collect that Lord

(v) By Serjt. Gawdy, in Browning v. Beston, Plowd. 137, and afterwards confirmed by Sir Thomas Coventry, Solicitor-General, in Smalman v. Agburrough, 1 Rol. 402.

(x) Acceptaunce, pl. 10.

(y) And see 10 H. 6. 24. pl. 83. [B].

(2) Jordan v. Wikes, Cro. Jac. 332; S. C., nom. Wilkes v. Jorden, Hob. 5. (a) Parry v. Hindle, 2 Taunt. 180.

Mansfield's opinion was, that a demise by the husband alone, seised in right of his wife, was not determined by his death. His lordship's words were:-" A husband seised in right of his wife may, and usually does, demise alone during the coverture (b): when he dies, all the rent accrued up to the time of his decease does not go over with the reversion to the wife; it is assets in the hands of the husband's executors. The wife has nothing to do with the demise or the rent." Now, as the reversion survives to the widow on the husband's decease, and as a reversion cannot subsist without a tenancy, and as a tenancy by sufferance is not sufficient for the purpose (c), it seems to follow that the estate of the lessee of the husband is voidable only on his death; for if it were actually void, the determination of the tenancy would be a determination of the reversion (d).

An attempt to reconcile these jarring decisions would prove a fruitless task, and in all probability render confusion more confused. A late eminent writer (e), however, has suggested the possibility of reconciling them, by distinguishing between leases for life and years; and he urges, that as, in the former case, the estate commences by livery, it can only be avoided by entry, but that in the latter the lease is absolutely void and determined by the husband's death: but it is submitted, that this conclusion is not justified by the authorities.

On the whole, perhaps, we may conclude, that a lease not pursuant to the enabling statute, or the fines and recoveries abolition act, by the husband alone, or by the husband and wife, of her lands, whether it be for life, or years, instead of being determined on his death in her lifetime, will continue in operation until avoided by her; and that any act of confirmation by her, or by an after-taken husband (f), or

(b) This assertion is questionable. The lease is never made by the hus band alone, if he professes to demise in pursuance of the enabling statute of Henry the 8th.

(c) Dy. 28, b.

(d) This reasoning is supported by

the case of Miller v. Maynewaring, W. Jo. 354; S. C., more fully reported, Cro. Car. 397, 5th resolution.

(e) Serjt. Williams; see his note to Wotton v. Hele, 2 Saund. 180. 180,a. b. (f) Anon. 2 Dy. 159, a. pl. (36).

3 Salk. 3.

persons claiming in privity to her (g), will confer on the lessee an estate absolute and unavoidable for the remainder of his term. The opinion of many distinguished members of the profession (h), moreover, favours this conclusion, which was evidently entertained, on a balance of authorities, by the learned author (i) of the title Leases in Bacon's Abridgment (k); although it must be admitted that some of the marginal cases there cited do not warrant that opinion.

The lease, on being determined by the widow, is deemed to have been void as against her ab initio (1); and after the avoidance the lessee may plead non dimiserunt to an action counting on the demise of husband and wife (m).

The privilege of electing to confirm or avoid the lease, though exerciseable by an after-taken husband (n), or by parties claiming in privity to the wife (o), her heir for instance, is not capable of delegation (p).

Nor can a party claiming paramount the wife exercise it. Accordingly, where husband and wife, in right of the wife, being joint-tenants with a third person, by indenture demised the moiety of the land for years, and the wife died in the lifetime of her husband, it was held, that the surviving jointtenant could not disturb the lease, as he derived his title to the premises paramount the feme, and not under her (q).

Whether the principle of confirmation by the surviving wife extends to the case of a demise by way of mortgage has been the subject of different opinions (r). There are two

(g) Smalman v. Agborow, Cro. Jac. 417; S. C. 1 Rol. 401. 441; J. Bridgm. 42; 3 Bulstr. 272.

(h) 1 Prest. Abst. 335. 4 Byth. Conv. by Jarm. 327; and Sweet's ed. vol. 4, p. 243. Com. Landl. & Ten. 41. Woodf. Landl. & Ten. 19. 3rd ed. by Harrison. And see post, p. 151. (i) L. C. B. Gilbert.

(k) Bac. Ab. Leases, (C.) 1.

(1) Thetford v. Thetford, 1 Leon. 192; S. C. Sav. 109; cited, 3 Co. 27, b. (m) Ibid.

(n) Anon. 2 Dy. 159, a. pl. (36). 3 Salk. 3.

(0) Smalman v. Agborow, Cro. Jac. 417; S. C. 1 Rol. 401. 441; J. Bridgm. 42; 3 Bulstr. 272.

(p) Cadee v. Oliver, 3 Leon. 153; S. C. Cro. Eliz. 152.

(9) Smalman v. Agborow, sup. 3

Mod. 300.

(r) Roper, in his Treatise on "Husband and Wife," is in favour of the wife's capacity to confirm. The late Mr. Jacob, the Editor of the last impression of that work considers Mr. Roper's conclusion questionable; and thinks that the decisions are not inconsistent. Mr. Coventry, on the other

cases on the subject (s). In the first, husband and wife, seised in right of the wife in fee of a share of the New River Water, by deed, without fine, made a lease for 1,000 years, by way of mortgage, reserving a peppercorn rent. On the death of the husband, the wife received the profits, and paid the interest. The mortgagee, having brought a bill to foreclose the wife, insisted that the lease was not actually void, but voidable by her after her husband's death, and that her payment of interest, when discovert, amounted to an election on her part to affirm the lease. "In this case," said the Master of the Rolls, "there ought to have been a fine, it being the inheritance of the wife; if there had been a rent reserved, the acceptance of such rent by the wife, when discovert, would have affirmed the lease; but here is no acceptance, and the lease is of an incorporeal thing, out of which rent could not well be reserved (1): wherefore, the lease expiring by the death of the husband, the mortgage is also thereby determined, and nothing remaining to foreclose. And though the court will not narrowly look into the title, yet when all this is admitted on both sides, and appears upon the opening, why should I pronounce a vain decree?" The bill was dismissed without costs. This decision requires a word or two of comment. In the first place, it is not clear whether the remark, “that if there had been a rent reserved, the acceptance of such rent by the wife, when discovert, would have affirmed the lease," was intended to apply to the case of a lease by way of mortgage, or to the case of a common demise; nor, supposing it to apply to the case of a mortgage, and assuming the possibility of reserving a rent out of the property in question, whether acceptance of a peppercorn, the only rent usually reserved on a demise by way of mortgage, would have operated as a confirmation. The words "but here is no acceptance, and the lease is of an incorporeal

hand, declares that the authorities are contradictory. See Pow. Mortg. by Coventry, vol. 2, p. 723. n. (Q).

(8) Drybutter v. Bartholomew, 2 P.

Wms. 127; S. C. 2 Eq. Ca. Ab. 132. pl. 4. Goodright dem. Carter v. Straphan, Cowp. 201; 1 Dougl. 53. n. [17]. (t) See as to this, ante, p. 27.

thing, out of which rent could not well be reserved," seem to imply the necessity of a rent being reserved, in order to enable the surviving wife to confirm the lease; but that proposition cannot be maintained, if, in accordance with some authorities (u), the power of the surviving wife to confirm a lease on which rent has not been reserved be admitted. Acceptance of rent, though perhaps the best, is not the only evidence of an intention to give stability to a voidable estate; various other acts, such as a distress (a), the prosecution of an action of waste (y), or even expressions, as, " God give you joy of your lease" (z); "I am content to accept the rent" (a), being deemed equivalent to acceptance. If the Master of the Rolls rested his judgment, as he appears to have done, on the necessity of a reservation of rent, the foundation of it is scarcely secure. The case, though an authority that payment of interest alone would not amount to a confirmation of the demise, seems to justify a conclusion that the mortgage would have been supported against the wife, had it consisted of a corporeal hereditament, accompanied by her acceptance of rent, when discovert; and thus to admit the principle, by acknowledging her competency to confirm under any circumstances.

In the other case upon the point (b), decided half a century afterwards in the court of King's Bench, the facts were as follow:-By indenture dated in 1737, Elizabeth Carter and her husband demised, by way of mortgage, the premises in question, of which he and she were seised in her right, for the term of 99 years, at a peppercorn rent. Three exhibits were produced, all subsequent to the death of Charles Carter, the husband. The first was an account stated, consisting, among other articles, of a receipt for rent of one of

(u) Anon. Hutt. 102. Jackson v. Mordant, Cro. Eliz. 112.

(x) Doe dem. Flower v. Peck, 1 Barn. & Adol. 428.

(y) Anon. Hutt. 102. The writ of waste was abolished by 3 & 4 W. 4. c. 27. s. 36.

(2) Anon. 4 Leon. 4.

(a) Anon. Dy. 159, a. pl. (36). (b) Goodright dem. Carter v. Straphan, Cowp. 201; 1 Dougl. 53. n. [17]. And see Clinton v. Hooper, 1 Ves. jun. 177.