391 If a person, at the time of entering into an agreement for a lease, be acting as the agent of another in negotiating for the lease, it is not material whether at that moment he intends the agreement to be for the benefit of his principal or his own; because in either case the principal will be entitled, as against him, to the benefit of the contract (p). Where an agent had an authority to grant leases from three only of four tenants in common, and he granted a lease to the land-steward of the property demised, professedly by virtue of a power granted to him by the four, the court decreed it to be set aside (q). In dealing with an agent, the agreement or lease should be made as the instrument of the principal, his name should be used as the granting party, and the deed delivered as his lease (r). Nor is an agent of the crown distinguishable in this respect from an agent of a subject (s); nor a parol contract from an instrument under seal (t). By neglecting this caution the agent may render himself personally responsible for the fulfilment of the contract, or performance of the cevenants contained in the lease, although he expressly describe himself as an agent for another (u). If a tenant take possession under an instrument professing to be a lease made in the agent's name, he may be evicted (p) Taylor v. Salmon, 4 Myl. & Cr. 134. Lees v. Nuttall, 1 Russ. & Myl. 53; affirmed by Lord Brougham, on appeal, 2 Myl. & K. 819. (q) Rossiter v. Walsh, 2 Con. & Law. 563; S. C. 4 Dru. & War. 485. (r) Combes's case, 9 Co. 77, a. D'Abridgcourt v. Ashley, Mo. 818. Reynold v. Kingman, Cro. Eliz. 115. Gilby v. Copley, 3 Lev. 140. Frontin v. Small, 2 Stra. 705; S. C. 2 Ld. Raym. 1418. Wilks v. Back, 2 East, 142. White v. Cuyler, 6 Term Rep. 176-7; S. C. 1 Esp. 200. Berkeley v. Hardy, 5 Barn. & Cres. 355; S. C. 8 Dow. & Ry. 102. (8) Anon. Mo. 70. pl. 191. As to leases by the crown, see ante, p. 184. The commissioners of woods and forests contracting for leases of crown lands are expressly indemnified from personal liability by 10 Geo. 4. c. 50. s. 17. See ante, p. 199. (t) Norton v. Huron, 1 Ry. & Moo. 229; S. C. 1 Car. & Pa. 648. (u) Ibid. And see Wilks v. Back, 2 East, 142. Appleton v. Binks, 5 East, 148; S. C. 1 Smith, 361. Burrell v. Jones, 3 Barn. & Ald, 47. Iveson v. Conington, 1 Barn. & Cres. 160. Berkeley v. Hardy, 5 Barn. & Cres. 355; S. C. 8 Dow. & Ry. 102. Cass v. Rudele, 2 Vern. 280; S. C. 1 Eq. Ca. Ab. 25. pl. 8. Kendray v. Hodgson, 5 Esp. 228. by the principal, the instrument being void as a lease (x); but, entering under colour of title, he holds in the interval as a tenant-at-will (y). No particular form of expression is required, provided the act be performed in the name of the principal. However, the lease is usually made "between A. B. [the lessor], of &c., by C. D., of &c., his attorney for this purpose lawfully authorised, of the one part, and the lessee of the other part; and concludes thus: "In witness whereof the said [lessor], by the said C. D. his attorney, hath hereunto set his hand and seal &c. A. B. [The Lessor] The power does not admit of delegation: Delegatus non potest delegare (z). It is apprehended that a lease made by, and in the name of, the agent, reserving rent to the principal, and executed by both agent and principal would not be binding on the latter, at law, except so far as he would be liable on the covenants entered into by him (a). On the other hand, if the instrument, being inter partes, the agent of the one part, and lessee of the other, purport to be a demise by the principal, and the rent be reserved to him, and the covenants be expressed to be between him and the lessee, but the deed be executed by the agent in his own name, and by the lessee only, the principal cannot support an action of covenant against the lessee (b), unless the indenture be executed after the 1st of October, 1845, in which case the benefit of a condition or covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture (c). (x) Anon. Mo. 70. pl. 191. D'Abridgcourt v. Ashley, Mo. 818. Reynold v. Kingman, Cro. Eliz. 115. (y) Ibid. (2) Combes's case, 9 Co. 75, b. And see Burrell v. Jones, 3 Barn. & (b) Berkeley v. Hardy, 5 Barn. & 393 An agent appointed simply to contract for the granting of a lease need not be authorised in writing (d), under the 4th section of the statute of frauds (e). But an appointment under seal is indispensable where his authority extends to the execution of a deed (f), or, it is submitted, to the demise of an incorporeal hereditament, which cannot be granted otherwise than by deed. A person cannot by will authorise his executor to make leases in the name of the devisee of the estate (g). Where one devised that his son should have the land at his age of twenty-four, and that his executor should repair his houses, and have the oversight and doing or dealing of all his lands and goods until such age, some difference of opinion prevailed on the bench whether the executor took an interest in the land, or an authority only; Fenner and Yelverton, relying on a case in Dyer (h), held that no interest passed; Williams and Popham thought that an interest did pass, Williams conceiving that he had an estate on a limitation to be determined at the son's age of twenty-four; but it was unanimously agreed, that, whether an interest passed to him or not, a demise made by the executor determined on the death of the son under the age of twenty-four years (i). (d) Coles v. Trecothick, 9 Ves. 234. 250. Clinan v. Cooke, 1 Scho. & Lef. 22. 31. Boyland v. Warner, 1 Hay. & Jo. 79. 88. (e) 29 Car. 2. c. 3. (f) Horseley v. Rush, cited, 7 Term Rep. 209. White v. Cuyler, 6 Term Rep. 176; S. C. 1 Esp. 200. Berkeley v. Hardy, sup. Williams v. Walsby, 4 Esp. 220. Steiglitz v. Eggington, 1 Holt's N. P. C. 141. (g) Pigot v. Garnish, Cro. Eliz. 678. 734. (h) Anon. Dy. 26, b. pl. (170). (i) Carpenter v. Colins, or Collins Yelv. 73; S. C. Mo. 774; 1 Brownl. 88. Moore reports that he died under 24. Yelverton and Brownlow say that that fact was not found by the jury. XXII.-Donees of Power of Leasing. 1st, As to the nature and design of the power. Every well-prepared settlement and will of real estate, unless its value be inconsiderable, or the circumstances of the case do not require it, contains a power of leasing. "Of all kinds of powers," said Lord Mansfield (k), "this is the most frequent. For the encouragement of farmers to occupy, stock, and improve the land, it is necessary that they should have some permanent interest. Unless the owner of the estate for life were enabled to make a permanent lease he could not enjoy to the best advantage during his own time; and they who come after must suffer by the land being untenanted, out of repair, and in bad condition. The plan of this power is for the mutual advantage of possessor and successor. The execution thereof is checked with many conditions, to guard the successor, that the annual revenue shall not be diminished, nor those in succession or remainder at all prejudiced in point of remedy, or other circumstances of full and ample enjoyment. There are two methods of leasing common in this kingdom: at the best rent, and upon fines, which, as the lives or leases drop, are considered among the annual profits." To render a lease by a tenant for life, jointress, tenant in tail (), or other person having only a limited interest, an available estate against a remainder-man or reversioner, a power of leasing must be expressly given or reserved: it cannot arise by implication (m). The design and object of the power are affected by various considerations. Sometimes it is conferred on the respective tenants for life, or tenants in tail themselves; sometimes on one or more of them; sometimes on trustees, or releasees to (k) Taylor dem. Atkyns v. Horde, 1 Burr. 120-1. And see Campbell v. Leach, 2 Ambl. 748. Shannon v. Bradstreet, 1 Scho. & Lef. 61. (1) Unless tenant in tail comply with the provisions of the late Fines and Recoveries Abolition Act, 3 & 4 W. 4. c. 74; as to which, see ante, p. 86. (m) Roe dem. Duke of Bolton v. Grantham, 3 Burr. 1259. 395 uses, to be exercised with the consent of the tenant for life, or tenant in tail, for the time being; or, in the discretion of such trustees or releasees during the minority of children; and authorises, according to the intention, leases for occupation, or for building, mining, or agricultural purposes. The conditions which it may be deemed advisable to attach to the exercise of the power are of course discretionary in the donor; but experience has proved the expediency of some restraints of general application, from which, in ordinary cases of practice, it is not advisable to depart. The law, however, will reject a qualification which tends to the destruction of the power itself; for example: if there be a power to make a lease of a manor, or of any part thereof, so as the ancient rent be reserved, yet the donee may by virtue of this power make a lease of the services, parcel of the manor, upon which no rent can be reserved, otherwise the express power would be defeated (n). 2ndly, As to the instrument creating the power. As every covenant to stand seised requires a consideration of blood or marriage (o), it follows that a general power of leasing created by that assurance cannot be supported at law, as the power might be exercised in favor of a person not within the range of the consideration (p). It is void though reserved to the covenantor himself (q). The fact of the appointment by way of lease being made to the son, daughter, or other person of the blood, of the covenantor makes no (n) Carth. 429; cited with approbation by Lord Mansfield in Goodtitle dem. Clarges v. Funucan, 2 Dougl. 574. (0) 2 Bla. Com. 338. 1 (p) Mildmay's case, 1 Co. 175, a.; S. C., nom. Mildway v. Standish, Mo. 144; cited, Mo. 372; S. C. Jenk. Cent. 247, case 36; Cro. Eliz. 34, but this point not noticed. Chute v. Lev. 30; S. C., nom. Lady Dacres v. Hazel, 1 Keb. 34. Pine v. Pine, 2 Keb. 809. 3 Salk. 385. Cross v. Barse, Rol. Ab. Powers, pl. 1. Cross v. Faustenditch, Cro. Jac. 180. Bolls v. Winton, Noy, 122. Sharington's case, cited, Gouldsb. 173. pl. 106. Baynes v. Belson, T. Raym. 247. Prince v. Green, cited, 1 Ch. Ca. 161; 3 Ch. Ca. 91. Anon. Freem. Ch. by Hov. 85, case 93. Goodtitle v. Pettoe, Fitzgib. 299; S. C. 2 Stra. 934; 2 Barnard. B. R. 10. 90. 142. Pigot's case, Cary, 41. Anon. Cary, 30. (2) Baynes v. Belson, T. Raym. 247 Warwick v. Gerrard, 2 Vern. 7. |