part of the said tenant, his executors, administrators, and assigns, then and in either of such cases it shall be lawful for the said (landlord), his (heirs or executors, administrators) or assigns, at any time thereafter, into and upon the said demised premises, or any part thereof in the name of the whole, to re-enter, and the same to have again, repossess, and enjoy as of his or their former estate, anything herein contained to the contrary notwithstanding (y). Such provisos are construed according to the intention of the parties, to be collected from the words. used (z). Thus where there was the following proviso, that if buildings should not be completed by a certain day, it should "be lawful for the lessor into the demised premises, or any part thereof in the name of the whole, and repossess, retain, and enjoy the same," it seems to have been held that the lessor had a right of re-entry, although the word "re-enter" had been omitted (a). But where the intention of the parties cannot be collected from the words used, the Court will not force a meaning into words which are insensible (b). Where the proviso for re-entry was to take effect upon breach of any of the covenants "thereinafter" contained, and there were none, except a covenant by the lessor for quiet enjoyment, provided the lessee performed the covenants "thereinbefore" mentioned, the Court would not reject the word "thereinafter" (c). Although in general the Court will construe a pro (y) As to forfeiture, re-entry, and waiver generally, see post, Part 3, c. 3, ss. 1, 2. (z) Doe d. Davis v. Elsam, M. & M. 189; Doe d. Muston v. Gladwin, 6 Q. B. 953, 961; Croft v. Lumley, 5 E. & Bl. 667, 27 L. J. Q. B. 321; Perry v. Davis, 3 C. B. N.S. 769; Baylis v. Le Gros, 4 C. B. N.S. 537, 539, 552. (a) Hunt v. Bishop, 8 Exch. 675. (b) Doe d. Wyndham v. Carew, 2 Q. B. 317; but see Doe d. Darke v. Bowditch, 8 Q. B. 973. (c) Doe d. Spencer v. Godwin, 4 M. & S. 265. viso most strictly as against the covenantor, yet a proviso that if, after thirty days' notice, the tenant should make default in performance of any covenant, the landlord might re-enter, was held not to apply to alterations of buildings made by the tenant without leave, and contrary to the covenant, but only to acts to be performed by the tenant upon notice given (d). So a proviso for re-entry if the lessee "should do, or cause to be done, any act," &c., does not apply to a mere omission, as non-repair (e). A proviso that upon breach the lessor may re-enter upon the premises, and hold them "as if the said lease had never been made," or other similar words, does not preclude an action upon the covenants accruing before the re-entry (f). Where there is a proviso in a lease that, upon breach of covenant, it shall be lawful for the landlord to re-enter, the landlord may elect whether to avail himself of the proviso or not (g), and the lessee cannot elect to treat the lease as void (h). A lease contained a covenant, amongst others, that the tenant should not carry away any hay, &c., under a penalty. Then followed a clause enumerating all the other covenants except (d) Doe d. Palk v. Marchetti, 1 B. & Ad. 715. (e) Doe d. Abdy v. Stevens, 3 B. & Ad. 299. See West v. Dodd, supra, p. 147. (f) Hartshorne v. Watson, 4 Bing. N. C. 178, 6 Dowl. 404; Load v. Green, 15 M. & W. 216; Selby v. Browne, 7 Q. B. 620; Davies v. Underwood, 2 H. & N. 573; Att.-Gen. v. Cox, 3 H. L. Cas. 240. (g) Reid v. Parsons, 2 Chit. 247; Doe d. Green v. Baker, 8 Taunt. 241; Rede v. Farr, 6 M. & S. 121; Doe d. Bryan v. Bancks, 4 B. & A. 401; Arnsby v. Woodward, 6 B. & C. 519; Doe d. Nash v. Birch, 1 M. & W. 402; Roberts v. Davey, 4 B. & Ad. 667; Jones v. Carter, 15 M. & W. 718; Pennington v. Cardale, 3 H. & N. 356; Baylis v. Le Gros, 4 C. B. N.S. 537; Hayne v. Cummings, 16 C. B. N.S. 421. (h) Rede v. Farr, 6 M. & S. 121; Doe d. Bryan v. Bancks, 4 B. & Ad. 401; Roberts v. Davey, 4 B. & Ad. 664; Doe d. Nash v. Birch, 1 M. & W. 402. Void and voidable leases. this, and providing that upon breach of "any of the covenants" the lessor might re-enter; and it was held that the words of the proviso were large enough to include the omitted covenant (i). As to forfeiture, re-entry, and waiver generally, see post, Part 3, c. 3, ss. 1 and 2. Sometimes the clause for re-entry, instead of providing that in case of breach of covenant it shall be lawful for the lessor to re-enter, states that "the lease shall cease, determine, and become void and of no effect." A proviso that upon non-payment of rent, &c., the lease shall become utterly void, or similar words, only means that it may be made so by some act of the lessor showing an intention to avoid the lease (j), and the lessee cannot elect to make the lease void (k). Where a fraudulent representation is made with respect to a collateral matter, in order to procure the granting of the lease, it will not avoid the lease (1); but a plea of fraud or illegality may be a good answer to an action for not granting a lease under such circumstances (m). Where there is an express covenant against using a (i) Doe d. Antrobus v. Jepson, 3 B. & Ad. 402. (j) Hartshorne v. Watson, 4 Bing. N. C. 178; Davies v. Underwood, 2 H. & N. 573; Roberts v. Davey, 4 B. & Ad. 664; Pennington v. Cardale, 3 H. & N. 656; Hughes v. Palmer, 19 C. B. N.S. 393; Arnsby v. Woodward, 6 B. & C. 519; Baylis v. Le Gros, 4 C. B. N.S. 537. (k) Rede v. Farr, 6 M. & S. 121; Doe d. Bryan v. Bancks, 4 B. & Ad. 401; Roberts v. Davey, 4 B. & Ad. 664; Doe d. Nash v. Birch, 1 M. & W. 402. (1) Feret v. Hill, 15 C. B. 207. (m) Calvaleiro v. Puget, 4 F. & F. 537; Cowan v. Milburn, L. R. 2 Ex. 230, 36 L. J. Ex. 124. house for immoral purposes, yet if the lessor permits a breach of the covenant, and derives gain from it, he cannot afterwards recover upon his covenant (n). Arrears of rent accruing before the lease is made void may be sued for; and so also with respect to breaches of other covenants, even if the lessor is to hold the premises upon re-entry "as if the lease had never been made" (o). 10. LEASES UNDER POWERS. The general nature and effect of powers, and what is or is not a valid execution of a particular power, is too wide a subject to be treated of here. There are, however, certain leading cases and principles which should be stated. The subject is fully treated of in other works more particularly devoted to this branch of the law (p). It may, in general, be stated, that the creation of the power and its execution will be construed according to the intention of the parties, collected from the words of the instrument, according to their ordinary and common acceptation (g). The Court will, if possible, support an appointment under a power, if it is not exercised from improper motives (r). (n) Smith v. White, 35 L. J. Ch. 454. See also Gas Light Co. v. Turner, 5 Bing. N. C. 666, where the purpose is illegal. (0) See Hartshorne v. Watson, 4 Bing. N. C. 178. And see the cases cited ante, p. 149, n. (ƒ), as to re-entry. (p) See Sugden on Powers, 711-835; Woodfall, L. & T. 153, 10th edit.; Chance on Powers; Powell on Powers. (q) Ren d. Hall v. Bulkeley, 1 Doug, 293; Pomeroy v. Parting. (r) See per Turner, L.J., in Carver v. Richards, 29 L. J. Ch. 360. It is also a general principle that a man having a power may do less than such power enables him to do; or if he do more, it shall be good to the extent of his power (s). If a tenant for life make a lease without taking notice of a power, it shall be taken to be an execution. of the power, for otherwise the lease shall not have an effectual continuance (†). If a man charge his estate, and then execute his power of leasing, the lessee will take subject to the charge (u). Upon a general power to make leases, the law adjudges that the leases ought to be leases in possession, and not in reversion (v). And if a man have a power to make leases in possession or reversion, having exercised his power in one way, he cannot afterwards exercise it in another (w). Where the power makes no mention of covenants, any covenants may be inserted or omitted, provided such insertion or omission be not a fraud which may lessen the value of the reversion (x). Where the power requires that the leases should be made under the "usual covenants," the question what are such is a question for the jury, and they must (8) Isherwood v. Oldknow, 3 M. & S. 382; Easton v. Pratt, 2 H. & C. 676, 33 L. J. Ex. 233; Edwards v. Milbank, 4 Drew, 606, 29 L. J. Ch. 45; Sug. Pow, 746, pl. 26. (t) 1 Vent. 228. (u) Sabbarton v. Sabbarton, Cas. Temp. Hardw. 415. (v) Sheecomb v. Hawkins, Cro. Jac. 318, Yelv. 222. (w) Winter v. Loveday, 1 Ld. Raym. 267. (x) Goodtitle d. Clarges v. Funucan, 2 Doug. 575. |