disseisin (t). Upon the same principle, and the law was the same before the enabling statute (u), a lease for years by tenant in tail, as it conveyed no more than could be rightfully conveyed, did not operate as a discontinuance (x). A lease, however, for life or years will operate as a revocation of a devise to the extent of the estate comprised in the lease, whether it be granted to a stranger or the devisee himself, provided, in the latter case, that it begin immediately, or futurely in the testator's lifetime, as it may then determine before his death (y); but a lease granted by a testator to his devisee of the lands devised, for a term to commence after the testator's death, will effect a total revocation of the devise, although the lease be delivered to a stranger to the use of the devisee, and the stranger do not deliver it to the devisee till after the testator's death, and although the devisee never agree to it; for the impossibility of both estates subsisting together affords evidence of an alteration of the testator's intention (z). So, a lease on which a rent is reserved will revoke a voluntary conveyance within the Statute, 27 Eliz. c. 4, whether a gross sum be paid by way of consideration or not (a). A demise of land empowers the lessee to work open mines; though he cannot open new ones without being guilty of waste (b); but if the demise be of land and all mines therein, and no mine be open at the time, the lessee may open a (t) Powseley, or Pouseley, v. Blackman, or Blakeman, Cro. Jac. 659; Palm. 201; 2 Rol. 284; S. C., nom. Ponesley v. Blackman, J. Bridg. 12; cited, Latch, 53. Fisher's case, Latch, 75. Lit. s. 588. 3 Mod. 196. Blunden v. Baugh, Cro. Car. 302; S. C. W. Jo. 315. (u) 32 Hen. 8. c. 28. (x) Lit. s. 622. See also Baker v. Hucking, Hutt. 126. The law of discontinuance was abolished for almost all practical purposes by the late statute of limitations, 3 & 4 W. 4. c. 27, s. 39. (y) Sheers v. Lammas, 11 Mod. 365. Croke v. Bullock, Cro. Jac. 49; Hodge skins v. Whood, Cro. Jac. 690; S. C., (b) Saunder's case, 5 Co. 12, a.; S. C., nom. Saunders v. Marwood, 1 Brownl. 241. Co. Lit. 54, b. Astry v. Ballard, 2 Mod. 193; S. C. 2 Lev. 185; Freem. K. B. 444; S. C., nom. Astrec v. Ballard, T. Jo. 71; S. C. 3 Keb. 709. 723.761. 765. 766. 776. The writ of waste was abolished by the statute, 3 & 4 W. 4. c. 27, s. 36. mine (c); if, however, the demise be of land and mines, some being open, and others not open at the time, the close mines will not pass (d). There is reason to suppose that an implied trust cannot subsist between a lessor and lessee; because every lessee is a purchaser by his contract and covenants, which seem to exclude all implication of a trust for the lessor; and, therefore, if in that case there be any trust at all, it is apprehended that it must be in writing (e). If the lease be but for half a year, or a quarter, or any less time, the lessee is respected as tenant for years, and is styled so in some legal proceedings, a year being the shortest term of which the law in this case takes notice (f). The estate of lessee for years is called a term, terminus, because its duration or continuance is bounded, limited, and determined; for every such estate must have a certain beginning and a certain end (g). A lease for years must be perfected by the entry of the lessee (h); a lease for life made before the 1st of October, 1845 (i), by livery of seisin (k). Before entry, the whole estate remains in the lessor (1), the lessee for years having in strictness no estate, but merely a right, denominated an interesse termini (m), which, though assignable (n), cannot be the foundation for a release by way of enlargement from the (c) Saunder's case, 5 Co. 12, a. ; S. C., nom. Saunders v. Marwood, 1 Brownl. 241. Co. Lit. 54, b. Astry v. Ballard, 2 Mod. 193; S. C. 2 Lev. 185; Freem. K. B. 444; S. C., nom. Astree v. Ballard, T. Jo. 71; S. C. 3 Keb. 709. 723.761.765.766.776. (d) Astry v. Ballard, sup. Co. Lit. 54, b. (e) Pilkington v. Bayley, 7 Bro. P. C. 526; Toml. ed. vol. 7, p. 383; MS. Journ. sub anno 1777-8. p. 112. (f) 2 Bla. Com. 140. Lit. s. 67. Co. Lit. 54, b. (g) 2 Bla. Com. 143. Co. Lit. 45, b. (h) Lit. ss. 58. 66. 2 Bla. Com. 144. O. Bridgm, by Bann. 499. Wil liams v. Bosanquet, 1 Brod. & Bing. (m) 2 Bla. Com. 144. The expression interesse termini is also used to denote the interest of a lessee in a term that is to commence in future. Copeland v. Stephens, 1 Barn. & Ald. 593. 606. Doe dem. Rawlings v. Walker, sup. (n) Co. Lit. 46, b. Saffyn's case, 5 nom. Saffyn v. Wheeler . lessor (0), nor will it qualify the owner to maintain an action of trespass (p), or ejectment (q). Even a lessee by bargain and sale under the statute of uses cannot maintain trespass till entry (r). The lessee may enter notwithstanding the death of the lessor during the term, whether he, the lessor, be sole or joint tenant (s). After the lessee's entry, the deed becomes available from the time of its execution (t), and the lessee the absolute owner of the premises for the term granted (u). The lessee's entry, however, in the case of a lease for years, is not necessary to entitle the lessor to sue for rent; as rent becomes due by the lease, and not by the entry; and, therefore, he need not aver occupation; but it is otherwise in the case of a lease at will, where the rent is only due in respect of occupation (x). We now proceed to consider the lease with reference to the subjects of demise. Thorogood, Cro. Eliz. 127; S. C., nom. (9) Saffyn's case, sup. Lit. s. 459. Co. Lit. 46, b. 270, a. (p) Plowd. 133, cites 22 E. 4. 13. 14. Bro. Trespass, 365. 5 Mod, 384. And see Plowd. 142. 37 H. 6. 18, a. Saffyn's case, or Saffyn v. Adams, sup. Wheeler v. Montefiore, 2 Q. B. 133. 142; S. C. 1 Ga. & Dav. 493. Doe dem. Parsley v. Day, 2 Q. B. 147. 156; S. C. 2 Ga. & Dav. 757. (2) Saffyn's case, or Saffyn v. Adams, sup. (1) Lutwich v. Mitton, Cro. Jac. 604. Barker v. Keat, 2 Mod. 249. 251. (8) Lit. s. 66. Copeland v. Stephens, 1 Barn. & Ald. 593, 606, (t) Copeland v. Stephens, sup. (u) Raine v. Alderson, 6 Scott, 691. 699; S. C. 4 Bing. N. C. 702; 1 Arn. 329. (x) Rushden's case, 1 Dy. 4, b., cites 18 H, 6. 1. A. Bellasis v. Burbrick, or Burbriche, Holt, 199; 1 Salk. 209; 1 Ld. Raym. 170. Anon., 1 Vent. 41. Anon., 4 Leon. 17. 18. Jeakill v. Linne, Hetl. 54. Anon., Dal. 44. pl. 30. Williams v. Bosanquet, 1 Brod. & Bing. 238. 257; S. C. 3 J. B. Mo. 500. Part the Second. OF THE SUBJECTS OF DEMISE. THE subjects of demise are various, and, generally speaking, comprehend incorporeal as well as corporeal hereditaments (a). Thus, not only land, but advowsons (b), corodies (c), estovers (d), ferries (e), fisheries (f), franchises (g), rights of common (h), rights of herbage (i), rights of way (k), tithes (1), tolls (m), and other things of a similar kind, may be leased for lives or years. (e) Rex v. Nicholson, 12 East, 330. Peter v. Kendal, 6 Barn. & Cres. 703. (f) The Bishop of Winchester v. Wright, 2 Ld. Raym. 1056. The Duke of Somerset v. Fogwell, 5 Barn. & Cres. 875; S. C. 8 Dow. & Ry. 747. (g) The Duke of Somerset v. Fogwell, sup. (h) Sury v. Brown, Latch, 99. (i) Tottel v. Howell, Noy, 54. 17 E. 4. 6. Sury v. Brown, sup. Hill v. Barry, Hay. & Jo. 688. (k) Newmarch v. Brandling, 3 Swanst. 99. Osborn v. Wise, 7 Car. & Pa. 761. (1) Bally v. Wells, Wilm. 341; S. C. 3 Wils. 25. The Dean and Chapter of Windsor v. Gover, 2 Saund, 302. Bousher v. Morgan, 2 Anstr. 404. Brewer v. Hill, 2 Anstr. 413. Cox v. Brain, 3 Taunt. 95. And see 6 & 7 W. 4. c. 71, An Act for commutation of tithes, in England and Wales, by the 88th section of which the lessee in occupation of tithes commuted under the act is empowered to surrender and make void his lease, so far as it may relate to the tithes; and the commissioners are empowered to direct what compensation shall be given to the immediate lessor, and what allowances shall be made by the lessee, in consideration of the nonfulfilment of any conditions contained in the lease, and what deductions shall be made from the rent thenceforth payable in respect of the hereditaments included in the lease. (m) Oldroyd v. Crampton, 4 Bing. N. C. 24. Bridgland v. Shapter, 5 Mees. & Wel. 375. Harris v. Morrice, 10 Mees. & Wel. 260. Walker v. Richardson, 2 Mees. & Wel. 882. A demise of minerals before they are won is a demise of the realty (n). Offices merely ministerial are also subjects of demise; and our early reports give examples of leases of the office of printing (0), of post-master (p), of registership of policies of assurance in London (q), of aulnager (r), and of teller of the Exchequer (s); and the case of Veale v. Priour (t) refers to other precedents of offices granted for years; first, of those concerning the safety of a realm; as the office of havenor, i. e., warden of a haven or port, by K. Hen. 6; of gun founder, 1 Car. 1; of making gunpowder, by King Charles the 2nd; secondly, of those concerning the trade of the realm; as 1 H. 7, of exchange of money; 18 H. 8, of gager; and of the letter office in the time of Charles the First. Lord Hardwicke also admitted that the office of taking care of the palace and house of lords might be granted to one and his executors and administrators for a term of terms (u). But it has been held that a lease of the office of marshal of the King's Bench (a), being an office of trust annexed to the person, and concerning the administration of justice, could not be granted for a term of years certain; for the trust being individual and personal could not be extended to the executor or administrator of the officer, which would otherwise be the case in the old customs of London for 10,000 marks monthly, to be paid into the wardrobe. The like was done in the 17th year of Rich. 2. anno 20, who let out for term of life the subsidy of cloth in divers countries. And Edward 4. anno 1, the subsidy and ulnage of cloth. Thus did H. 8. with his customs, and since his time the late Queen, and our now Sovereign, [i. e., William the Third.] Note by C.J. Treby to Northcote v. Ward, 3 Dy. 303, a. (x) After the next vacancy the person having the custody of the prison is to be called the Keeper of the Queen's Prison. 5 Vict. sess. 2, c. 22, s. 22. |