the houses, from 1755 to 1760, out of which was deducted an article for interest due, a balance struck, and the account signed by Elizabeth Carter. The second was as follows:23 May, 1763. I do hereby surrender the possession of a house belonging to me at Reading, late in the occupation of Mr. Collins, but now empty, to Mr. Thomas Sanders and Mr. William Smith, executors of Mr. William Greening, deceased, the mortgagee thereof. Signed, Elizabeth Carter: witness, John Lewis. The third ran thus:-23 May, 1763. Mr. Miles, I do hereby direct you to attorn tenant for your house and shop at Reading, from Lady-day last, to Mr. Thomas Sanders and Mr. William Smith, executors of Mr. William Greening, the mortgagee of the said premises, and to pay them all rent that shall become due for the same from that time: and I desire you will pay the rent that was due at Lady-day last to the same person as you formerly paid your rent to for my use: Signed, Elizabeth Carter: witness, John Lewis.-Lord Mansfield, who delivered the judgment of the court, after observing, that in strictness a fine was the proper method for a married woman to part with her right, and animadverting on the injustice of the wife's attempt to set aside the mortgage, continued thus:-"Mr. Wallace at the trial put it upon the footing of leases by husband and wife, reserving rent or no rent, which the authorities say are not void, but only voidable by the wife after the husband's death, and if she ratifies them she is bound. It was answered that those authorities were by way of exception to the general rule of law, which says, the deed of a married woman is void, and they were allowed of for the sake of agriculture and tillage: that this, it is true, is a lease for 99 years, and a century ago the court would not have seen further; but now, it is said, the court must look further, and see the real intent of the deed, namely, that it was a mortgage. We are all of opinion that the answer is a good one, and that the exception to the general rule was allowed of for the advancement of agriculture and tillage. We are also of opinion, that the court ought to look into the substance of the deed, and to see with the same eyes as the rest of the world: it is in substance a mortgage, though in form a lease for 99 years. But we think we have good authority to say, that the wife is nevertheless bound by it, and that her subsequent acts set up this mortgage against her." Thus the cases appear to be consistent; and as Drybutter v. Bartholomew admitted the wife's power to confirm; and as judgment was given against the wife in the case of Goodright dem. Carter v. Straphan, on the ground of her redelivery of the mortgage deed operating as a confirmation, we may perhaps conclude that the demise by husband and wife of her freehold lands by way of mortgage, by simple deed, without an instrument of record, is a voidable and not a void interest in the mortgagee on the death of the husband in the lifetime of the wife. The student may be cautioned in this place against the adoption of a too prevailing notion, usually the result of indolence, that these discussions are rather speculative than useful. Though the enabling statute, to which we may now direct our attention, materially extended the leasing powers of husband and wife over the wife's freehold estates, he will not fail to perceive that questions relating to such of their leases as are not in conformity with that statute, or the act for the abolition of fines and recoveries (c), and they are numerous, must be referred for solution to the common law and hence we perceive the application of the cases already cited in this division to the purposes of modern practice. We now proceed to the consideration of the enabling statute (d), so far as it is applicable to leases granted by husband and wife. That statute enacted, "that all leases thereafter to be made of any manors, lands, tenements, or other hereditaments, by writing indented under seal, for term of years, or for term of life, by any person or persons being of full age of twenty-one years, having any estate of inheritance either in fec-simple, or in fee-tail, in their own right, or in the right of their wives, or jointly with their wives, of any (c) 3 & 4 W. 4. c. 74. (d) 32 Hen. 8. c. 28. estate of inheritance, made before the coverture or after, should be good and effectual in the law against the lessors, their wives, heirs, and successors, and every of them, according to such estate as was comprised and specified in every such. indenture of lease, in like manner and form as the same should have been if the lessors thereof and every of them, at the time of making of such leases, had been lawfully seised of the same lands, tenements, and hereditaments, comprised in such indenture, of a good perfect and pure estate of feesimple thereof to their own only uses," on the observance of the same conditions as by the act in question were imposed upon tenants in tail (e) and ecclesiastical persons; the third section of the act providing, that the wife be made a party to every such lease which thereafter should be made by her husband, of any manors, lands, tenements, or hereditaments, being the inheritance of the wife; and that every such lease be made by deed indented in the name of the husband and his wife, and she to seal the same; and that the ferm and rent be reserved to the husband and to the wife, and to the heirs of the wife, according to her estate of inheritance in the same; and that the husband shall not in anywise alien, discharge, grant, or give away, the same rent reserved, nor any part thereof, longer than during the coverture, without it be by fine (f) levied by the said husband and wife; but that the same rent shall remain, descend, revert, or come, after the death of such husband, unto such person or persons, and their heirs, in such manner and sort as the lands so leased should have done if no such lease had been thereof made." Leases, therefore, made in pursuance of this statute will continue in operation during the term, notwithstanding the death of the wife, whose heir, though entitled to the rent, cannot eject the lessee, or enter into possession without being guilty of a trespass (g). (e) As to which, see ante, p. 66, et seq. (f) Fines were abolished by 3 & 4 W. 4. c. 74. (g) Hill v. Saunders, 2 Bing. 112; S. C. 9 J. B. Mo. 238; in error, 4 Barn. & Cres. 529. The construction of the conditions imposed by the act alike on husbands and wives, tenants in tail, and ecclesiastical bodies, having undergone investigation in a preceding page (h), it will only be necessary to point out in this place such few peculiarities of the statute as exclusively affect demises by husbands and wives. The statute does not extend to cases where the husband and wife are seised in her right of an estate of freehold not of inheritance (¿). The validity, therefore, of leases derived under such estates must be referred to the rules of the common law, or to the powers conferred by the late act for abolishing fines and recoveries (k), to which attention will shortly be more particularly directed. If a husband purchase land to him and his wife and their heirs, it seems that a lease for years made by him alone will bind the surviving wife. Such a lease is rendered effective by the body of the act, and does not fall within the words or intent of the proviso (7). Where lands were given to husband and wife and the heirs of their two bodies, and the husband died leaving issue by the wife, and she made a lease of the lands according to the statute of 32 Hen. 8, it was doubted whether the lease was good against the issue, as the statute said that the lease should be good against the lessor and his heirs, and the issue did not claim as heir to the wife only, but as heir of both husband and wife; but Windham and Rhodes, Justices, agreed that the lease should bind the issue by the statute (m). As the act does not authorise demises of copyhold lands as against the lord, a lease by the husband of a feme copyholder in fee for a term not warranted by the custom, nor by the lord's license, will operate as a forfeiture (h) Ante, p. 66, et seq. (i) Co. Lit. 44. Hargr. n. (2). (k) 3 & 4 W. 4. c. 74. (1) Smith v. Trinder, Cro. Car. 22, per Yelverton, Harvey, and Croke; Hobart doubted. (m) Anon. Godb. 102. pl. 119. The doubt mentioned in the text was entertained by Fenner, J. during the husband's life; reversible, however, by the surviving wife (n). So, if a husband seised of a manor in right of his wife lease a copyhold, parcel thereof for years, by indenture, and die, the copyhold quality of the lands demised will not be destroyed as to the wife; her right to demise by copy reviving on her husband's death (0). Care must be taken to reserve the rent conformably to the mode required by the act. Where a coparcener in tail, and the husband of a deceased coparcener, being tenant by the curtesy, joined in demising the lands entailed, reserving the rent to them and their heirs, it was held that the lease was not protected by the statute, as the rent was not reserved to the donee of the estate tail and the heirs of her body inheritable thereto (p). A mere contract by the husband for a lease of his wife's freehold lands will not be enforced against her surviving, whatever may be the consideration (9). Leaseholds for years of which the husband is possessed in right of his wife, being unaffected by the enabling statute, are subject, as we have seen (r), to his common law power of alienation. His right to dispose of the term, either absolutely, partially, or conditionally, is unquestionable (s). He may confer by demise an immediate interest and possession; or may underlet for a term to commence even after his death (t); and the lessee will be entitled to the term in exclusion of the surviving wife; though she will be entitled to that part of the term of which the husband makes no disposition (u). (n) Hedd v. Chalener, Cro. Eliz. 149. Saverne v. Smith, Cro. Car. 7; S. C. 2 Rol. 344. 361; Palm. 383; Bendl. 131; S. C., nom. Smiths v. Severne, Bendl. 147, the second page of that number. (0) Conesbie v. Rusky, Cro. Eliz. 459, the second page of that number. (p) Thomson's case, Latch, 45. (4) Earl of Darlington v, Pulteney, Cowp. 260. 267. Anon. Freem. Ch. (t) Anon. Poph. 4. Harbin v. Chard, Poph. 96-7. Harbin v. Barton, Mo. 395. Grute v. Locroft, Cro. Eliz. 287; S. C. cited, Mo. 395; 1 Co. 155, a.; Cart. 155. (u) Ante, p. 139. |