Under a power of this kind, the donee cannot make one lease in possession and another in reversion of the same land; but his power of leasing in reversion will be confined to such land as was not in the possession of the donor of the power at the time of its creation; and, therefore, if, by the determination of the then existing lease, the donee once lease in possession, he can never after make a lease in reversion; for he has an election to do one or the other, but not both (h). And if the premises, being in possession at the creation of the power, be afterwards demised, it seems that a lease in reversion cannot be maintained; though C. J. Holt said he would not declare his opinion of that, because it did not come judicially before him (i).

Where there was a power of leasing for any term or terms of years, or life or lives, so as such estate and term should not exceed the number of twenty-one years or three lives in possession and remainder; or for any number of years determinable upon one, two, or three lives at the most; and the donee leased the premises to R. S. for ninety-nine years, if he should so long live, to begin after the determination of a term created previously to the power, and of which term ten years were then unexpired; the court held the power to be well exercised. They agreed that a lease for one life and ten years would not be within the power; for the estate must be such as would not exceed three lives or twenty-one years, in the disjunctive, and the ten years and a life might exceed. three lives or twenty-one years; but that, as the ita quod, or so as, reached not to the estates of the land, but to the estates by virtue of the power, and was therefore inapplicable to the then existing lease, the lease in question did not exceed the term allowed (k). They considered the point ruled and determined by Whitlock's case ().

It is observable, that the court construed the word remainder

(h) Winter v. Loveden, 1 Ld. Raym. 267. 269.

(i) 1 Ld. Raym. 269.

(k) Berry v. White, O. Bridgm. by

Bann. 99. 100.

(1) Whitlock's case, 8 Co. 69, b.; S. C. 1 Brownl. 169.

to signify the same as reversion; and the word and, in the words possession and remainder, to signify or, in the disjunctive; for otherwise, it was said, no estate could be made in possession alone (m).

One of the objections mainly urged in the case of Berry v. White, just cited, was, that if the donee of the power might make leases also in reversion or remainder, he, or those who came to have the power after him, might likewise make leases in reversion or remainder; and so lease might be made upon lease in infinitum, so as every lease exceeded not three lives, or twenty-one years; and there might be many leases of twenty-one years after twenty-one years, or many leases determinable upon three lives, every one of several men's lives; and so, in effect, destroy the interest of those others in remainder (n). Bridgman, C. J., however, conceived that he who, by virtue of the power, had made such a lease in reversion or remainder, as long as that continued but a reversion or remainder, could not make another lease in reversion or remainder upon it, if it, together with all the estates in possession and remainder made before by virtue of the power, should exceed the number of twenty years (o), or three lives, in possession or remainder; for that was the terminus ultra quem they could not go by virtue of the power; and that the words, "so as such estate and term (in the singular number) exceed not twenty-one years or three lives in possession or remainder," must be taken collectively for such estate and terms (in the plural number); for so were the words precedent, "any term or terms"; and, secondly, that "estate in possession and remainder" could not properly be understood but of two estates; and, therefore, that, in a reasonable construction, the power might be construed to be confined, not to be executed beyond twenty-one years or three lives in the whole, both in possession and remainder (p).

But where tenant for life with a power of leasing "for any

(m) O. Bridgm, by Bann. 100. (n) O. Bridgm. by Bann. 101.

(0) So in report. Qy. 21 years? (p) O. Bridgm. by Bann, 101-2.

term or number of years, not exceeding the term or space of ninety-nine years from the date of executing such lease, and so as every such lease or leases should be made to take effect either in possession or immediately after the determination of the leases then subsisting thereof respectively", by lease, dated 29th May, 1787, demised the premises for thirty years from the 10th October, 1791, on which day several existing leases of the same premises would expire; and by another lease, dated 4th June, 1787, but in fact agreed for under the same bargain, and at the same time, as the lease of 29th May, 1787, and in pursuance of which agreement both leases were executed at the same time, granted the same premises to the same person, to hold from the 10th October, 1821, for sixtythree years; it was held, that the second lease, being made under the same bargain, was an invalid execution of the power, although the whole interest comprised in the two leases did not exceed the term allowed by the power; for as the one lease was made to commence at the expiration of a lease then in being, and the other was not made to commence until a later period, it was clear that the latter was not a lease to take effect in possession, or immediately after the determination of the then subsisting lease. The court, however, said, that had the leases been made at different times, and in consequence of different bargains, the case might perhaps have been different; but on this point they did not think it necessary to express an opinion (q).

It appears that a power of leasing in possession or reversion will not warrant the grant of a lease to commence at Michaelmas next after the determination of a former lease, so as to leave an interval between the first and second lease (r).

A special power of leasing cannot be declared upon as a general power: for example, if the power be to lease for twenty-one years in possession, and not in reversion, rendering the ancient rent, and the lessee not to be dispunishable

(4) Doe dem. Sutton v. Harvey, 1 Barn, & Cres. 426; S. C. 2 Dow. & Ry. 589.

(r) Berry v. White, O. Bridgm. by Bann. 102.

for waste, it is a fatal variance to declare upon it as a power to the donee during his life to make leases for twenty-one years (s).

3rdly, As to leases under powers that authorise the grant of leases generally; but are silent as to the period of commencement.

It seems to be universally agreed, that, if the estate be not in lease at the creation of the power, a particular power affirmative of leasing for life or lives, for twenty-one years, or any other specified period, without providing for the time of commencement, will not warrant the grant of a lease to commence at a future day (t); unless it can be inferred that the donor of the power intended that a lease in reversion should be made (u); for the term "demise and lease" imports a present possession; and if the lease cannot be executed in præsenti, it is hardly capable of the sense belonging to the expression "to demise and lease". Upon this principle, where a power was given to a tenant for life to grant, demise, set, and let, during his life, all or any part of the lands devised, for the term of ninetynine years, to be determined on the death of one, two, or three lives; and in pursuance of the power he demised the premises for ninety-nine years, if E. H. should so long live, the said term to commence from and immediately after the death of J. L. and M. R. (x), who survived the donee of the power; it was held that the power was badly exercised, as the lease was no more than the grant of an interest to be postponed to a future time; and that, in consequence of the death of the lessor before the prior lives dropped, the lease must take effect, if at all, after his death; and, moreover, that as

(8) Sands v. Ledger, 2 Ld. Raym. 792.

(t) Countess of Sussex v. Wroth, Cro. Eliz. 5; S. C. 3 Leon. 136. Berry v. White, O. Bridgm. by Bann. 94. 96. Hardr. 412. Winter v. Loveday, Com. 37; S. C. ut sup. p. 423, n. (z). Baynes v. Belson, T. Raym. 247, 2nd point. Slocomb v. Hawkins, Yelv. 222; S. C. Shecomb v. Hawkins, Cro. Jac. 318;

1 Brownl. 148. 3 Salk. 276.

(u) Doe dem. Copleston v. Hiern, 5 Mau, & Selw. 40. And see Copley's argument in Shaw v. Summers, 3 J. B. Mo. 202-3.

(x) J. L. and M. R. were lives on which a subsisting term for years was determinable, though it was not so stated in the case.

455 the previously subsisting term might also by possibility be expended before the lives, it could not be the intention of the devisor that the tenant for life should have power to postpone the grant of an interest to so distant a period, but only that he should encumber the estate to the extent of a term for ninety-nine years determinable on three lives (y).

In Doe v. Oxenham (2), which stood next in the paper for argument, a lease was made under the same power for ninety-nine years, if two lives therein named should so long live, to commence from the death of T. S., who died in the lifetime of the lessor; but the court considered that this made no difference in effect, and gave judgment for the plaintiff.

The donee, therefore, after having made a lease in pursuance of his power, cannot during such lease grant another to begin at the expiration of the first; even though the first be but a partial exercise of the power, and the first and second together do not exceed the term allowed by it (a). A lease made to commence at a future day is alike void whether that day fall immediately after, or be totally independent of, a previously existing interest (b). The donee's right to grant leases to commence in futuro is not extended, though the power enable him to grant any lease or leases, or to lease for any term or terms (c).

These, it will be observed, are cases of particular powers affirmative; but whether the circumstance of the power being a general one restrained by a negative would make a difference is not quite clear.

As Anderson reports the case of Harcourt v. Pole (d), it was held, that a power of leasing for any number of years not exceeding the number of ninety-nine years from the time of the making of the demise authorised a lease for sixty years to commence twenty years after the making; for it did not

(y) Doe dem. Copleston v. Hiern, 5 Mau. & Selw. 40.

(2) Doe v. Oxenham, 5 Mau. & Selw. 46, n.

(a) Shaw v. Summers, 3 J. B. Mo. 196. This was not a case of a parti

cular power affirmative.

(b) Slocombe v. Hawkins, sup.

(c) Countess of Sussex v. Wroth, sup. Berry v. White, O. Bridgm. by Bann. 96-7.

(d) Harcourt r. Pole, 1 And. 273.