Page images

administrators, and assigns, shall and will, from time to To A Builder.

time and at all times during the continuance of the said production of

term hereby granted, upon every reasonable request, and mente 0f tiae

notice thereof, in writing, for that purpose given to him or mentioned in a - . , i n -r\ i . i • • schedule;

them by the said U. D., his executors, administrators, or

assigns, or any other person or persons lawfully or equitably claiming or to claim any estate, right, title, or interest, of, in, or to the said piece or parcel of ground, messuage, and other hereditaments hereby demised or expressed and intended so to be, or any part or parts thereof, at the costs or charges of the person or persons requiring the same, produce and shew forth, or cause or procure to be produced and shewn forth, to him, them, or any of them, or to such person or persons as he, they, or any of them, shall desire or require at any trial or hearing in any Court of law or equity, or other judicature, or in the execution of any

evicted the tenant, it was held that an action would lie against the husband's executors, upon the covenant for quiet enjoyment. (Hurd v. Fletcher, 1 Doug. 43). So, where a tenant for life, making a lease under but not conformable to a power, covenanted for quiet enjoyment, without interruption by the lessor, his heirs or assigns, or any other person claiming any estate, right, or interest, by, from, or under him, or any of his ancestors ; and the remainderman in tail, the eldest son of the lessor, evicted the tenant, it was held that the eldest son was a person claiming under the lessor, within the meaning of the covenant for quiet enjoyment. (Evans v. Vaughan, 4 B. & C. 261; S. C. 6 Dow. & Ry. 349; see, however, Woodhouse v. Jenkins, 9 Bing. 431 ; S. C. 2 Moo. & Scott, 599).

With regard to how far covenants for quiet enjoyment in under- —in underleases extend to the acts of the superior landlord, see Lewis v. Campbell, Ieases, 3 J. B. Moore, 35; S. C. in error, nom, Campbell v. Lewis, 3 B. & Aid. 392; Upton v. Fergusson, 3 Moo. & Scott, 88; Evans v. Curtis, 2 Car. & Pay. 296; Hancock v. Caffyn, 8 Bing. 358; S. C. 1 Moo. & Scott, 521 ; Spencer v. Marriott, 1 B. & C. 457; S. C. 2 Dow. & Ry. 665; Ireland v. Bircham, 2 Bing. N. C. 90; S. C. 2 Scott, 207.

It seems that, under an ordinary covenant for quiet enjoyment, the Payment of

payment of rent is not a condition precedent to the performance of ^"p,^TM'

the covenant; but if the rent be not paid, the lessor must proceed by jent to the per

ejectment under his proviso for re-entry. (Dawson v. Dyer, 5 B. & formance of the

Ad. 584; S. C. 2 Nev. & Man. 559). See further with respect to C0ven«* for

. quiet enjoy

the protection afforded by the covenant for quiet enjoyment, infra, meqt. Precedent VIII., n. (e).

To A Bpildek. commission or elsewhere, as occasion shall be or require, all or any of the several deeds and instruments which are specified in the schedule annexed to these presents, for the manifestation, defence, and support of the estate, title, and possession of the said C. D., his executors, administrators, or assigns, and all and every other person or persons so —and to far- claiming or to claim as aforesaid: And Shall and will, them • ° from time to time and at all times hereafter during the said term, at the request, costs, and charges of the said C. D., his executors, administrators, or assigns, or any other person or persons so claiming or to claim as aforesaid, make and deliver, or cause to be made and delivered, to the said C. D., his executors, administrators, or assigns, or such other person or persons as aforesaid, such true and attested copies, or true copies unattested, of the same respectively, l safely or any of them, as he or they may require: And Shall and will, in the meantime, keep the same deeds and instruments in his and their custody uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident (l). In Witness &c.

THE SCHEDULE referred to in the above-written indenture.

(/) This is, of course, not a very usual covenant in leases, though necessary in cases like that in the text,

keep the same.


LEASE of a Farm (described in a Schedule) Q> A Farm.
for a Term of Years, Determinable on the
Death of the Lessor. Exception And Re-
Servation of Clay, Fish, Trees, and Bushes,
and of Rights of Entry for Sporting, and
other special and general purposes. Reserva-
Tion (over the usual Rent) of an Additional
Rent for ploughing Pasture, or misusing
Arable Land. Covenants by the Lessee
(among others) to do Carriage- Work, and furnish
Straw for the Lessor,to warn off Sportsmen
Trespassing,to manage the Farm in a specified
manner,not to Assign or Underlet without
License,that Lessor may resume Land for
Planting,—to keep down Rabbits,to use an
Ancient Fair. Proviso for Re-entry. Cove-
Nants by the Lessor to do certain Acts, and
for quiet Enjoyment, till a fixed day after the
end of the Term. Provision for Valuation
of Crops left at the end of the Term.

THIS INDENTURE, made &c. Between A. B., of Parties.

&C, [lessor], of the one part; and C. D., of &c, [lessee],

of the other part: WITNESSETH, that, in consideration Witnesseth.

of the yearly rent hereinafter reserved, and of the covenants, Consideration.

conditions, and agreements hereinafter contained, and on

the part of the said C. D., his executors, administrators,

or assigns, to he observed and performed, he the said A. B. Demise.

hath demised, leased, and to farm letten, and by these

presents doth demise, lease, and to farm let, untp the said

C P., his executors, administrators, and assigns, All Parcels.

That messuage or farmhouse, together with the cottages,

barns, stables, outhouses, buildings, yards, gardens, and

orchards, homestall, closes, and inclosures, pieces or parcels

Of A Farm. 0f arable, meadow, and pasture land, therewith used, held,

and occupied, situate in , in the said county of ,

containing, by admeasurement, more or less, late in

the tenure or occupation of , and now of the said C. D.,

and more particularly described in the schedule hereunder

General words, written: And Also All the rights, liberties, privileges, and appurtenances to the said messuage, farm, and premises belonging, or in anywise appertaining, or therewith held,

Exception and used, or enjoyed, Except And Reserved (a) out of this

reservation of » J J' v j

Distinction between an exception and a reservation.

Requisites of an exception.

An exception

(a) It is to be observed, that, although the words " except" and "reserved" are frequently conjoined, yet an exception and a reservation are things totally different. For an exception must be of part of the thing granted, and of a thing in esse at the time of the grant; but a reservation must be of some new thing created out of the thing granted. (Co. Litt. 47. a.; Shepp. Touchst. 80). Thus, an exception may be of a house, or a close of land comprised in the property granted, or of trees generally, or specified trees; (Shepp. Touchst. 78); while a reservation is of a rent, or a right of way. (Ib. 80; Bush v. Calis, 1 Show. 388; Domina Russell v. Gtiltccll, Cro. Eliz. 657).

An exception must be of part of the thing granted, and not of some other thing: thus, in a grant of a manor, or close of land, parcel of the manor may be excepted, but not a close which is not parcel or tithes; (Shepp. Touchst. 78, 79); it must, of course, be of apart only of the thing granted, for an exception of the whole is absurd and void. (Ib. ; Dorrell v. Collins, Cro. Eliz. 6 ; 3 Leon. 64). And an exception must not be repugnant to the grant; that is, it must not be of such a kind as to render nugatory any part of the grant. Thus, in a grant of land, an exception of the profits, or the pasturage, is void; (Shepp. Touchst. 79); so if a man demise a house and shops, excepting the shops, the exception is void; (Hornebt/Y.Clifton, Dyer, 264 a) ; or if a man demise his estate in certain lands, excepting one moiety, or demise twenty acres, excepting ten acres, these are void exceptions. (Miller v. Pratt, Ib. n. (40) ; Legh v. Heald, 1 B. & Ad. 622). So, if there be a lease of a parsonage, excepting the glebe, or of a manor, excepting the demesnes, or the services of the court baron, these exceptions are void. (Mai/dew v. Ycaxley, Dy. ubi supra; Shepp. Touchst. 79). It seems, however, that the king may grant a manor excepting the courts or perquisites, (Sir Robert Acton's case, Dyer, 288 b), and that a court-lcet may be excepted out of any grant of a manor. (Ib. note). See, further, with regard to exceptions, Shepp. Touchst., ubi supra; Com. Dig. Fait, E. 5; and as to the distinction between a saving and an exception, see T. Raym. 359; Plowd. 361.

An exception out of an exception is good, and of course makes OF A FARM.

present demise, all brick earth, clay, and clay pits, fish,

fishponds, timber, and other trees, wood, underwoods (b), clay, fishponds, timber,

. and bushes.

the thing as though it had never been excepted; as in the lease of a out of an exrectory, except the parsonage house, saving to the lessee a chamber in ception. the house. {Leigh v. Shaw, Cro. Eliz. 572; Ow. 20). With respect to reservations, see Shepp. Touchst. 80. Reservation.

(J) If a manor be leased, excepting the woods and underwoods, the Exception of soil on which they grow is excepted. (Bro. AT1r. Reservation,pi. 39; words anQ Liford's cas\ 11 Co. Rep. 49 b; Dyer, 79 a, pi. 48; Ive v. Sams, iti Cro. Eliz. 521; Whihter v. Paslow, Cro. Jac. 487). And where ci„des. the exception was of wood, underwood, coppices, and hedge-rows, standing, growing, and being in and upon the premises, it was held that the soil of a coppice was excepted, overruling the argument that the coppice being described as standing on the " premises" (pro; dimissa) shewed that the soil was considered to be demised. {Hide v. Whistler, Poph. 146). A coppice, it was said, signified a parcel of land fenced for the safeguard of young trees. It should, however, be observed, that the lease contained a covenant by the lessee to make fences; but if the lessor made new coppices, the lessee was not to make fences about them. An exception of trees does not include the soil on which they grow. (See the cases previously cited, and Legh v. Heald, 1 B. & Ad. 622). But it should be observed, that in Legh v. Heald, the demise was of a tenement " containing nineteen acres," and without the woodland there would have been only thirteen, and this alone, it is apprehended, would have made void the exceptions of the soil. (See supra, p. 44, n. (a)). In an early case, {Smith v. Bole, Cro. Jac. 459), an exception of trees was said to include the soil, and the same doctrine seems to have been asserted in Roles v. Rock; (2 Selw. N. P. 1287); but the reverse is clearly the law. If there be a demise excepting trees and timber, the lessee is not bound to protect the trees and timber, or the young shoots, from the depredations of his cattle. {Clithero v. Higgs, Sir W. Jones, 388; Glenham v. Hanby, 1 Ld. Raym. 739). The lessor has a power, as incident to the exception of trees, to enter upon the land to fell and take them away; (Co. Litt. 56. a.; 11 Co. Rep. 62; Hey don v. Smith, Godb. 173 ; Jackson v. Cater, 5 Ves. 688; see, too, Hinchcliffe v. The Earl ofKinnoul, 5 Bing. N. C. 1); but it is usual to add a reservation of all necessary rights.

Sometimes the trees are not excepted out of the demise, hut a power Effect of a re is reserved to the lessor to enter and cut them. The distinction is s*rh'*t0Jne0[ * material with regard to the lessor's remedy, in case of the lessee's in- to^cu^trees'1^ juring the trees; for if they be excepted, the lessor's remedy is by an action of trespass ; whereas, if they be included in the demise, with a power reserved to enter and cut them, his remedy will be as for waste. {Foster v. Spooner, Cro. Eliz. 18; Lushford v. Saunders, Cro. Eliz.

« PreviousContinue »