being, at the request and charges of such surviving lessee, execute another grant unto such surviving lessee, for the lives of such surviving lessee, and of such two other persons as such surviving lessee should nominate, 'at for and under the like rents, covenants, and conditions, as were therein mentioned and contained'. Provided, that if at any time Robert Moore, the elder, his heirs or assigns, should, upon the death of any one or more of them the said Robert, James, and Mary, neglect or refuse to pay to Lord Foley, his heirs or assigns, the said respective sums, or to surrender the grant then in being, and accept a new grant, it might be lawful for Lord Foley, his heirs and assigns, to enter and hold until he and they should have received the said several and respective sums with interest, and then he and they should make such grants, &c., as he and they ought to have made if the money had been paid at the time." Sir Wm. Grant was of opinion, upon the whole, that the lessee was entitled to the benefit of four renewals: one under the covenant in the original grant; then having got his three lives again, he had the stipulation for renewal when any one of them should die. "There being no words clear in this case," said his Honor, "nor any words relative to perpetual renewal; but the parties themselves having limited it, the question is, whether the proviso that the renewal shall be under the same rents, covenants, and conditions, as the first lease, shall, in the absence of more positive stipulation, amount to a perpetual renewal. Upon Tritton v. Foote, and Russell v. Darwin, I am bound to hold that a covenant for renewal under the same covenants does not include the covenant to renew, but that it means only a second lease, not a perpetuity of leases." The next, and perhaps the strongest case, is Iggulden v. May (0), in which the naked point was presented to the court. The covenant, drawn with singular brevity and simplicity, provided, that at the end of eighteen years of the term of (0) Iggulden v. May, 1 Ves. 325. In Dowling v. Mill, 1 Madd. 541, decided subsequently to Iggulden v. May, the VOL. I. 3 A point was raised, but not touched by the decision. twenty-one years (for which the lease was granted), or before, upon request of the lessee, the lessor would seal and deliver to the lessee a new lease of the premises, for the like fine or consideration of 51. 8s., for the like time and term of twenty-one years, at the like yearly rent of 6s. 9d., " with all covenants, grants, and articles", as in the then present indenture were contained. The lease contained no other express covenant; a circumstance which was urged in argument for the plaintiff as decisive of the intention that every lease should include the covenant, and that there should be a perpetual renewal; as, unless that covenant were preserved, those words would be useless. Lord Eldon, admitting that the general doctrine on the general words was opposed to the readmission of the covenant for renewal in the renewed lease, was not sufficiently satisfied as to the legal meaning of the covenant; and therefore ordered the plaintiff's bill to be retained for twelve months, with liberty to bring an action. The plaintiff then resorted to the court of King's Bench (p), and afterwards carried the question on appeal to the Exchequer Chamber (q), in both of which courts judgment was given against him. In answer to the plaintiff's argument that the word covenants could not be satisfied without the insertion of a covenant for renewal, it was said (r), "that that word would be literally satisfied by the lessor's granting a lease with a covenant for good title, and quiet enjoyment, and the lessee himself being bound by no other covenant on his part than that contained in the first indenture, viz., to pay the rent; with power of entry and distress:"-In passing we may observe, that, as the first indenture contained no other express covenant than the one for renewal, the court, in alluding to the lessee's covenant to pay rent, probably meant the implied covenant on the Reddendum (s). Kenny v. Forde (t), determined in Ireland, is consistent with these decisions. There, a lease was made for the lives of (p) 7 East, 237. (q) 2 New Rep. 449. (r) 7 East, 243-4. 2 New Rep. 452. (*) See 9 Ves. 330; and post, Part the Fifth, Ch. IX., as to the Reddendum. (t) Kenny v. Forde, Batty, 534. A., B., & C., and contained a covenant by the lessor with the lessees, their and every of their heirs, executors, administrators, and assigns, and with the survivor of them, that, at the death of any of the said three lives thereinbefore mentioned, their, or any, or either of their heirs, executors, administrators, and assigns, at all times thereafter, upon payment of one year's rent to the lessor, his heirs or assigns, it should be lawful for any and every of the surviving lessees, their or any or either of their heirs, executors, administrators, or assigns, to put in any new life as he or they should nominate and appoint; and the lands and premises therein before demised to be enjoyed during the said life, "at the rents, covenants, and reservations therein before expressed"; and on a case sent from the court of Chancery to the court of King's Bench in Ireland, the judges certified, that the covenant was not one for perpetual renewal. They also certified, that a former lease mentioned to have been surrendered as part of the consideration for the lease above mentioned, could not be resorted to for the purpose of expounding the covenant for renewal, and of giving to it its legal construction and effect. The latest case (u) was peculiar in the language of the covenant on which the question arose. A lease was granted in 1663 of certain lands in the county of Carlow, in Ireland, and also of the timber then growing or lying thereon, with power to make sale and disposal thereof as the lessee, his executors, administrators, or assigns, should think fit, without impeach ment of waste, they planting 500 trees of oak or ash in the room of them, for the term of ninety-eight years, at the yearly rent of 157. for the first three years, and of 30%. for the remainder of the term; and the lessor covenanted, for himself, his heirs and assigns, upon request of the lessee, his executors, administrators, and assigns, from time to time to renew the said lease, and perfect such other further (x) assurances as the lessee, his executors, administrators, and assigns, should (u) Brown v. Tighe, 8 Bli. P. C. N.S. 272; S. C. 2 Cla. & Fin. 396. (x) The word further was in the counterpart, but not in the part of the lease executed by the lessor. 2 Cla. & Fin. 398, n. reasonably require, for the better strengthening, confirming, and sure making of the said demised premises unto the lessee, his executors, administrators, and assigns, "at such rents, and under such covenants as contained in the said indenture of lease," at the charge of the lessee, his executors, administrators, and assigns. In 1779, the lease was renewed for ninety-eight years, and the indenture contained all the same clauses, provisions, and covenants, as in the original lease, and, amongst them, a covenant for renewal in the same words as were contained in the original lease. The last-mentioned lease being within a few years of expiration, the lessee filed his bill in Ireland to enforce a renewal, which had been refused by the reversioner; but the court, though at first inclined to consider the covenant as amounting to an agreement for a perpetual renewal, upon further consideration held it to be a covenant for further assurance only; and the judgment was afterwards affirmed on an appeal to the House of Lords, great stress being laid on the provision requiring the lessee to plant 500 oak or ash trees in the place of those sold, which was deemed incompatible with the supposition that the lessor intended to part with his whole interest under a covenant for perpetual renewal. On the whole, it is indisputably settled, that the words "under the same rent and covenants” are not of themselves sufficient to include the covenant for renewal (y). Nor will a covenant to grant a lease "in the same form" include the covenant for renewal (z). Where a party covenanting to renew is prevented by a subsequent act of parliament from performing his contract to its full extent, the court will decree it to be specifically executed to such extent as remains lawful; as where the dean and chapter of St. Paul's, having, before the restraining act (a), made a lease of Doctors' Commons for ninety-nine (y) And see Earl of Inchiquin v. Burnell, 3 Ridgew. P. C. 376; 3 Hargr. Jurisc. Exer. 178; 1 Hargr. Jurid. Arg. 411. (z) Iggulden v. May, 2 New Rep. 452. (a) 13 Eliz. c. 10. years, with a covenant for renewal, at the expiration of that term, for ninety-nine years longer, were decreed to make a lease for forty years, which was allowed by the statute of 14 Eliz. c. 11 (6) III. As to the acts of the parties being received in evidence in aid of construction. In this place we may notice how strongly the courts have generally opposed the doctrine, advanced in Cooke v. Booth (c), and apparently sanctioned by Lord Hardwicke (d), that the acts of the parties, or their impression of the effect of their covenant, could be admitted as a key to its construction. Cooke v. Booth was a case out of Chancery for the opinion of the court of King's Bench; in which it was stated, that a lease was granted for three lives, and that the lessor covenanted, that if the lessee, his heirs, &c., should be desirous, on the decease of the lives or any of them, to add one life to the then two in being, in lieu of the life so dying, then he, the lessor, on the surrender of the lease in being, and payment of a sum of money for every life to be added in lieu of the life of every of them so dying, would grant a new lease for the lives of the two persons named in the former lease as should be then living, and of such other person as the lessee, his heirs, &c., should name, in lieu of the person named in the preceding lease, as the same should respectively happen to die, under the same annual rent, and the same covenants therein contained. The lease bore date the 22nd of December, 1749, and there had been successive renewals, containing the (b) Betesworth, or Betsworth, v. The Dean and Chapter of St. Paul's, Sel. Ca. in Ch. 66; S. C. 2 Eq. Ca. Ab. 26. pl. 30; S. C., on appeal, where the decree below was reversed, 3 Bro. P. C. 389; Toml. Ed. Vol. 1, p. 240; Gro. & Rud. of Law & Eq. 254. In the book last named it is said, clearly by mistake, that the House of Lords de creed the Dean and Chapter to renew (d) Furnival v. Crew, Atk. 88; S. C. 9 Mod. 446. The same mode of construction was adopted in the Irish House of Lords in Atkinson v. Pilsworth, 1 Vern. & Scriv. 157. 161. A.D. 1787. |