tenants make a lease, and one dies, the survivors are entitled to the whole rent, and the interest of the lessee continues (x). Tenants in common cannot make a joint-lease of the whole of their estate (y); and if the lease purport to do so, it is merely the lease of each for their respective parts, and the confirmation of each for the part of the other; neither is there any estoppel, because an actual interest passes from each (≈). If one joint-tenant or tenant in common makes a lease for years of his part to his companion, this is good, and such a lease extinguishes the jointure for the time, and gives a right of distress (a). So also a jointlease by coparceners operates as a several demise by each of her own share (b). One coparcener cannot sue separately for her portion of the rent accruing to her and her fellows upon a lease made by the ancestor (c), although it would probably be different if the lease had been made by the coparceners. 6. MORTGAGOR AND MORTGAGEE. All leases made by a mortgagor subsequent to the mortgage and before the foreclosure, except under an express power (d), are void as against the mortgagee (e); but such leases are by estoppel good as between Jac. 91; Bellingham v. Alsop, (x) Henstead's case, 5 Co. Rep. 10 b; Doe d. Aslin v. Summersett, 1 B. & Ad. 135, 140. (y) Com. Dig. Estates, (K.) 8; Burne v. Cambridge, 1 Moo. & R. 539; Heatherley d. Worthington v. Weston, 2 Wils. 232; Doe v. Errington, 1 A. & E. 750. (2) Mantle v. Wollington, Cro. Jac. 166; Brooks v. Foxcroft, Clayt. 137; Jurdain v. Steere, Cro. Jac. 83; Com. Dig. tit. Estates (G.) 6, (K.) 8; Bac. Abr., Joint Tenants and Tenants in Common, 1 Roll. Ab. 877, (L.) 48, 52. (a) Bac. Abr. tit. Leases, 401; Co. Litt. 186 a; Cowper v. Fletcher, 34 L. J. Q. B. 187. (b) Milliner v. Robinson, Moore, pl. 939. (c) Decharms v. Horwood, 10 Bing. 526. (d) Bevan v. Habgood, 30 L. J. Ch. 107. (e) Powell on Mortgages, 157; Keech v. Hall, 1 Doug. 21; Thunder d. Weaver v. Belcher, 3 East. 449-451. the parties (). The mortgagee in possession cannot make a lease so as to bind the mortgagor if he should afterwards redeem (g), unless to avoid an apparent loss, and merely of necessity. In practice, when it is necessary to make a lease of the mortgaged premises, both mortgagor and mortgagee should join in the lease (h). With respect to a lease of lands mortgaged after the making of the lease, the tenants may safely continue to pay their rents to the mortgagor until they receive notice from the mortgagee (i). 7. LORDS OF THE MANOR AND COPYHOLDERS. Lords of manors may make voluntary grants of copyholds as well as admittances, according to the custom of the manor (j). Where there is no custom for that purpose, the lord of the manor cannot make a new grant of copyhold (k). By 13 Geo. III., c. 81, s. 15, lords of manors, with the consent of three fourths of the commoners, may demise for not more than four years any part of the wastes and commons, not exceeding one-twelfth part, for the best rent that can be obtained by auction, the same to be applied in draining, fencing, and improving the residue. A copyholder cannot make a lease for more than one year without a license or by special custom, without thereby incurring a forfeiture of his (f) Cuthbertson v. Irving, 28 L. J. Ex. 306. (g) Hungerford v. Clay, 9 Mod.; 1 Powell on Mortg. 188; Franklinski v. Ball, 34 L. J. Ch. 153. (h) Doe d. Barney v. Adams, 2 C. & J. 232; Doe d. Hughes v. Bucknell, 8 C. & P. 566; Carpenter v. Parker, 3 C. B. N.S. 206; Franklinski v. Ball, supra ; Saunders v. Merryweather, 3 H. & C. 902. (i) See post, Part 4, c. 1, s. 1, Attornment; 4 Anne, c. 16 s. 10; Trent v. Hunt, 9 Exch. 14-23. (j) Badger v. Ford, 3 B. & A. 153; Rex v. Welby, 2 M. & S. 504. (k) Rex v. Hornchurch, 2 B. & Ald. 189. estate (); but he may for a less term by custom of the manor (m). By special custom a copyholder may make a lease for years, or for life, without license from the lord (n). A custom for copyholders in fee to lease for any number of years, without license, on condition of the term ceasing on the lessor's death, is a good custom (o). The powers of leasing given by sect. 32 of 19 and 20 Vict., c. 120 (p), are extended by 21 and 22 Vict. c. 77, s. 3, to the lords of settled manors to give licenses to their copyhold and customary tenants to grant leases. The copyholder, however, having license to demise, ought not to exceed the license (g), but he may lease for a shorter term than that permitted by the license (r). A tenant at will of a manor cannot grant a copyholder license to alien for years; and if a tenant for life of a manor grants a license to alien for years, it determines at his death (s). A lease by a copyholder, without license of the lord, and contrary to the custom of the manor, is good against all but the lord (t). If a copyholder make a lease with license, the lessee may assign without license, or make an under-lease (u). (7) Anon. Moor. 184; East. v. Harding, Cro. Eliz. 489; Jackman v. Hoddesden, Id. 351. (m) 1 Scriven on Copyholds, 457. As to what is a lease by a copyholder for more than one year, see Lady Montague's case, Cro. Jac. 301; Luttrell v. Weston, Id. 308; Matthews v. Whetton, Cro. Car. 233. (n) 1 Scriven on Copyholds, 457. (0) Turner v. Hodges, Hutt. 101. (p) See ante, s. 2, Tenants for Life, p. 5. (q) Hadden v. Arrowsmith, Owen 73; Cro. Eliz. 461; Jack- (r) Goodwin v. Longhurst. Cro. Eliz. 535; Worledge v. Benbury, Cro. Jac. 437; Isherwood v. Oldknow, 3 M. & S. 382; Easton v. Pratt, 2 H. & C. 676. (8) Com. Dig. tit. Copyhold (C.) 3. (t) Doe d. Tressider v. Tressider, 1 Q. B. 416; Doe d. Robinson v. Bousfield, 6 Q. B. 492. (u) Com. Dig. Copyhold (K) 3. Corporations. The Crown. 8. CORPORATIONS. At common law a corporation may make a lease by deed under their seal for any term of years or for lives, consistently with their estate, which lease will be binding upon their successors, except in cases where their power so to demise has been taken away by Act of Parliament, or is affected by their bye-laws and private statutes (v). By the 1 Anne, c. 7, s. 5, the Crown is restrained from granting leases for a longer term than twentyone years or three lives, and subject to certain conditions; and with respect to building or repairing leases, to fifty years or three lives. Municipal The power of municipal corporations to lease their corporations. lands is restrained by the 5 & 6 Will. IV., c. 76, ss. 94-96, by which they are prohibited from granting leases for a longer term than thirty-one years without the consent of the Lords Commissioners of the Treasury, except in the case of renewed leases (w), and building leases for terms not exceeding seventy-five years. Ecclesiastical and eleemosynary corporations. At the common law, ecclesiastical corporations aggregate and eleemosynary corporations, could make any lease they thought fit to make consistent with their estate, and so could ecclesiastical corporations sole, with the consent of certain other persons. Thus, for example, archbishops and bishops could make leases with the consent of their dean and chapter (x). (v) Smith v. Barrett, 1 Sid. 161. (x) Bishop of Salisbury's case, 10 Rep. 60; Anon. Dyer, 58 b, pl. 7; Co. Litt. 301 a; Bac. Abr. Leases (G) 2. As to the persons by whom confirmation is to be made, see Woodfall, Landlord and Tenant, p. 21, 9th ed. statute. By the 32 Hen. VIII., c. 28, s. 1 (called the Enabling Enabling Statute) (y), all persons seised of lands in fee-simple in right of their churches (~), (except parsons and vicars) (a), could make leases for twenty-one years, or three lives, without the confirmation of any person, provided they conformed to the conditions imposed by the statute (6). These large powers were found inconvenient in practice, and have been restrained by several statutes (c), the result of which is as follows: statutes. 1. Where archbishops and bishops do not follow Disabling the provisions of the statute 32 Hen. VIII., c. 28, they may make leases for twenty-one years, or three lives (but for no longer period), with the confirmation of their deans and chapters, so that they pursue the provisions of the 1 Eliz., c. 19 (d). 2. All other ecclesiastical corporations sole, including parsons and vicars with confirmation, and all ecclesiastical and eleemosynary corporations aggregate (e) without confirmation, may make leases for the like period, following the provisions of the 1 Eliz., c. 19, 13 Eliz., c. 10, and 18 Eliz., c. 11; but all ecclesiastical and eleemosynary corporations (except archbishops and bishops) may lease their houses in (y) This Act has been repealed by 19 & 20 Vict. c. 120, except so far as relates to leases made by persons having an estate in right of their churches. (z) This extends to prebendaries, chancellors, archdeacons, precentors. Acton v. Pritcher, 4 Leon. 51; Watkinson v. Mann, Cro. Eliz. 349; Bisco v. Holt, Lev. 112, Sid. 158. It has been doubted whether a perpetual curate is within this Act. Doe d. Richardson v. Thomas, 9 A. & E. 556. (a) See sect. 4. (b) The conditions are stated ante, p. 3. (c) The following are the Disabling Statutes:-1 Eliz. c. 19; 13 Eliz. c. 10; 14 Eliz. c. 11; 18 Eliz. c. 11; 39 Eliz. c. 5, s. 2; 1 Jac. I. c. 3. By the 43 Eliz. c. 9, s. 8, all judgments had for the intent to have and enjoy any lease contrary to the above statutes, are declared void. (d) See Bac. Abr. tit. Leases, p. 330. (e) Case of Magdalen College, 11 Rep. 76. B |