Waste.

Usual cove

nants.

payment of the rent or rents to be thereby respectively reserved. A lease was granted, with a proviso for re-entry, if the rent should be in arrear for forty-two days, and was held to be a valid execution of the power. (i)

Another common direction in powers is, that the lease shall not make the tenant dispunishable for waste. Such a direction is not contravened by the lessor taking upon himself the burthen of the repairs. (k)

Powers frequently require that usual covenants should be inserted in the lease. What these usual covenants are, is in general a question for the jury. And, accordingly, when under a power to lease for years, reserving the usual covenants, tenant for life made a lease containing a proviso that, in case the premises were blown down or burned, the lessor should re-build, otherwise the rent should cease, the jury found that it was an unusual and unheard-of covenant. (1) But where, in an act of parliament to enable A. to grant building leases, it was directed that leases should contain usual and reasonable covenants, and in a lease made in pursuance of this act the lessee covenanted to keep the old buildings in repair, and to repair such other messuages or buildings as should during the term be built on the premises, the Court of Common Pleas decided that this was not a building lease under the power contained in the act; for a covenant to build must be a reasonable covenant in a building lease. (m)

(i) Doe dem. Wythev. Rutland, 2 Mee. & Wels. 661.

(k) Doe dem. Bromley v. Bettison, 12 East, 305. In Campbell v. Leach, Amb. 740, where there was a demise of opened and unopened mines, it was contended that the lease was void, because the power required that the lessee should not be made dispunishable for waste; and to open mines is waste. To which it was answered,

that all the mines were included in the power; and therefore Lord Holt's rule (before cited) applied, "That where a qualification is annexed to a power of leasing, which, if observed, goes in destruction of the power, the law will dispense with such qualification."

(1) Doe dem. Ellis v. Sandham, 1 T. R. 705.

(m) Jones dem. Cowper v. Verney, Willes, 169.

In the case of the Earl of Cardigan v. Montague, (n) it was held by Lord Hardwicke, that in a power directing the reservation of the ancient rent, boons, &c., the word "boons" included a covenant to repair; and that a lease, purporting to be executed under this power, but omitting such covenant, was void.

Where the lease omits any usual and proper covenant, it is void for the whole; and so, where an improper covenant is inserted, as that in case the premises are blown or burnt down, the lessor shall repair, otherwise the rent shall cease; such covenant cannot be rejected, but the lease is altogether tainted, and void in toto. (o) But the insertion of an unusual covenant, binding only on the tenant for life, will not, it seems, avoid the lease. (p)

When the power is silent as to the covenants to be inserted in the lease, it is necessary, in order to impeach such lease, upon the ground of the insertion of a particular covenant, to shew that it was inserted in fraud of the power; (9) and therefore, if the covenants are such as to leave the parties on the same footing as under former leases, (as where it appeared that what was thrown on the landlord was compensated by what was paid by the tenant,) this difference in trivial circumstances will not avoid the lease.

And where, under a power in a will, "to demise and lease such parts of the testator's premises as had been usually granted or demised, and were then in lease, for any term of years determinable on lives to any persons for the like terms, and in like manner, and under the like rents, services, and conditions, as the same had been usually granted; and the residue of the same premises unto any persons for any term of years not exceeding twenty-one years in possession,

Powers in

at the best and most improved rent that could be reasonably gotten for the same, so as that no such demise or lease should be made dispunishable of waste, nor without a condition of re-entry on non-payment of the rent and services thereby reserved, and so as each lessee should execute a counterpart of his lease." It was held that the word "such" could not be thrown back, so as to apply to or govern the first class of the testator's premises, which had been usually let and were then in lease; but must be confined to the latter class of property, viz., the residue of the premises, for the leasing of which the testator had given separate and specific directions. (r)

The common power to grant building leases will not building leases, authorize the laying out of roads, squares, mews, or the like, which are subjects of reservation rather than of lease. It may, in some cases, be advisable to add to the usual language of the power words authorizing these purposes. In some instances an application to Parliament has been found necessary to remedy the defect. (s)

V. Execution

of the lease.

V. Lastly, where the power directs the particular manner in which the lease is to be executed, this direction must appear to have been exactly pursued. As if the deed be required to be under the hand and seal of the lessor, attested by witnesses, and the attestation be only "sealed and delivered in the presence," &c., the deed will be void. Nor will a subsequent sttestation of the signing, sealing, and delivery, supply the original defect; since the attestation ought to be a part of the same transaction with the execution of the deed. (t) Nor can such defective attestation be supplied by the parol evidence of the attesting witnesses, that the deed was actually executed pursuant to the power. (u) By an act of the legis

(r) Doe dem. Bligh v. Coleman, 1 Bingh. 28. 7 Moore, 271.

(s) Vide App.

(t) Wright v. Wakeford, 4 Taunt. 213. Doe dem. Mansfield v. Peach, 2 M. & S. 576. Wright v. Barlow,

3 M. & S. 512; et vide Moody v. Reid, 1 Madd. 516. Hougham v. Sandys, 2 Sim. 95.

(u) Doe dem. Hotchkiss v. Pierce, 2 Marsh. 102. S. C. 6 Taunt 402.

Wright v. Wakeford, supra.

lature, the defect in the attestation of the fact of signing an instrument then executed is remedied, but it does not extend to other defects in the attestation, and it is not prospective. (v)

It has been already stated, that where the lease is not executed by the tenant for life pursuant to the power, it is ipso facto void as against the remainder-man, and no act of confirmation by him can afterwards set it up. Accordingly, where by a marriage settlement the husband had the wife's estate for life, with power to grant leases for twenty-one years, but no longer; and in breach of the power he granted a lease to A. for ninety-nine years, determinable upon lives; and the wife survived him, and conveyed the fee to B.; although in the conveyance the lease to A. was recited, and he was recognized therein as then being tenant in possession of the estate, at the yearly rent reserved: yet upon an ejectment being brought by B. against the assignees of the lease: it was held that the lease being void, and the recital being only matter of description, no demand of possession was necessary to sustain the action. (w)

In the usual power for leasing, it is commonly required, except in a building lease, that the lessee shall not be made dispunishable for waste, and that he execute a counterpart. If these requisitions are not complied with the lease will be void, (a) and it would even seem, that where the power is silent as to the conditions, such conditions as are usually made requisite in powers of leasing would be considered implied, unless a contrary intention was shewn in the instrument creating the power. (y)

In the case of building leases, a clause against waste will, it should seem, be deemed repugnant. (~)

(r) 54 Geo. III. c. 168. (w) Doe dem. Biggs v. White, 2 Dowl. & Ry. 716.

(x) Jones dem. Cowper v. Ver

ney, Willes, 169.

(y) Taylor v. Horde, 1 Burr. 125. (2) Campbell v. Leach, Amb. 740. Sugd. on Powers, 5th edit. 658.

BOOK THE SECOND.

CHAPTER THE FIRST.

When these

rights, &c., attach.

OF THE RIGHTS AND LIABILITIES OF LANDLORD AND

TENANT.

THE demise being accomplished, and the relation of landlord and tenant thereby created, certain rights and liabilities appertain to either party, not only in respect of each other, but also in respect of third persons who are strangers to the contract for even against strangers there are rights which the lessor still retains, though divested of the present possession of the premises; and there are rights which the tenant acquires as soon as he is clothed with that character, and before he takes possession: and so, on the other hand, there are strangers to whom the lessor may still remain liable, and to whom the lessee may become responsible although not in possession.

The rights and liabilities of landlord and tenant attach, in the case of a lease for life, upon the completion of the demise by livery of seisin, or other conveyance requisite to the passing of a freehold. But in the case of a lease for term of years, rights and liabilities attach even before the demise is perfected; and though, in order to carry into execution the contract between the lessor and lessee, it is necessary that the lessee should actually enter, yet immediately upon the making of the contract, and before entry, the lessee acquires a vested interest in the term, whether the lease be to commence in præsenti, or in futuro. (a)

(a) Co. Lit. 46. b.