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SHALL, at the end of the said term, allow the said C. D., OF A FARM. his executors, administrators, or assigns, for the turnips the lessee the
value of turand mangel-wurzel, and for the last year's hay, and for the nips, &c., left feed of the new layers to be left as hereinbefore mentioned on the farm to
be fixed by a at the end of the said term, such sum of money as the same valuation. shall be valued at, between the — and days of — in the said last year, by two or three indifferent persons, (one to be chosen by the said A. B., his executors, administrators, or assigns, one by the said C. D., his executors, administrators, or assigns, and the third by the two persons so to be first chosen), or any two of them, such third person to be chosen prior to such two persons entering on their valuation. IN WITNESS &c.
THE SCHEDULE referred to in the above-written Indenture.
LEASE under a Power of LEASING in a Set- UNDER A
TLEMENT (a). EXCEPTIONS, RESERVATIONS, –
(a) The learning with regard to leases under powers is exceedingly Leases under voluminous and abstruse ; and as it would be impossible, within the powers. limits of the present work, to give any adequate view of the matter, the editor contents himself with referring to the works of Sir Edward Sugden, and Mr. Chance. See, particularly, 2 Sugd. Pow. ch. xvii. ; Chance on Powers, ch. xvii. It is not usual in leases under powers to recite the power, or to notice the instrument by which it was created ; a mere general reference, as in the case in the text, is deemed sufficient. Of course, however, there is no objection to recitals, if they are thought likely to be serviceable ; and if the lessee pays a premium for the lease, or means to lay out money in building,
UNDER A ment] of the first part; E. F., of &c., [tenant for life under
- the settlement], of the second part; and G. H., of &c., Witnesseth. [lessee), of the third part; WITNESSETH, that, in consiConsideration.
deration of the yearly rent hereinafter reserved, and of the covenants, conditions, and agreements hereinafter contained, and on the part of the said G. H., his executors,
administrators, or assigns, to be observed and perforined; Appointment And pursuant to, and by force and virtue, and in exercise by way of de
and execution of the power or authority to them for this purpose given by an indenture of release, bearing date the day of — grounded on a lease for a year, and made or expressed to be made between [parties], being the settlement made in pursuance of the directions contained in the will of , and in obedience to several orders made by the High Court of Chancery in several causes in the said indenture of release mentioned, they the said A. B. and C. D., with the consent of the said E. F. given by these presents, do by this present indenture, sealed and delivered by them in the presence of and attested by the two credible persons whose names are intended to be hereupon indorsed as witnesses to the sealing and delivery of these presents by the said A. B. and C. D., limit and
appoint by way of demise or lease unto the said E. F., Parcels. his executors, administrators, and assigns: ALL THAT &c.,
[parcels described by reference to schedule, see supra, p. 44] Exception and TOGETHER WITH &c. [general words, supra, p. 44], Except reservation of
AND RESERVED out of this present limitation and appointclay, fish, trees and bushes ; ment, all brick earth, clay, and clay-pits, fish, fish-ponds,
timber, and all other trees, wood, underwood, willows, alders, sallows, thorns, and bushes, which, during the term
hereby granted, shall be in or upon the said premises, --with rights WITH LIBERTY of ingress, egress, and regress to and for of entry for
mining, or the like, he will be very imprudent to take his lease without at least inspecting the instrument creating the power, even if he waive the production of the entire title of the lessor. (See supra, p. 16, n. (c.)). It is hardly necessary to caution the draftsman, that, whether the power be or be not recited, the terms and language of it should be precisely followed, as well as the material requisitions complied with.
the person or persons who, under the limitations of the UNDER A said indenture of the day of the settlement],
cutting timber, shall, for the time being, be entitled to the premises by &c. virtue of this present exception and reservation not comprised in the limitation and appointment by way of demise hereby made as aforesaid, to enter upon the said demised premises, and to dig, cut, fell, top, stub up, convert, and carry away the said excepted brick earth, clay, fish, timber, and other trees, woods, underwoods, alders, willows, sallows, thorns and bushes, and to plant all sorts and for of trees in the several banks or hedge-rows of the said
w : planting ; premises, and to view the condition thereof, and to bring materials thereon, and to repair or renew the same: And -and for
inspection and For the person or persons for the time being entitled, ro under the limitations of the said indenture of the day of — to the reversion expectant on the term intended to be hereby limited, and his and their assigns, at all reasonable times to enter into and upon the said demised premises, and to view the condition thereof, and to bring materials thereon, and repair and renew the banks and the hedge-rows thereof, and to plant all sorts of trees and bushes in the said several banks and hedge-rows, and for all other purposes: AND ALSO FOR the person or persons —and for
sporting and for the time being entitled as aforesaid, and his and their other på lessees, assigns, friends, companions, and game-keepers, agents, and servants, at all seasonable times in the year, to hawk, hunt, shoot, course, fish, fowl, and sport, in, over, and upon the said premises, and for all other reasonable purposes : To HAVE AND TO HOLD the said messuage habendum for or tenement, farm, lands, and hereditaments, and all and a singular other the premises hereinbefore limited and appointed, or expressed and intended so to be, unto the said G. H., his executors, administrators, and assigns, from the — day of for the term of years from thence next ensuing and fully to be complete and ended, YIELDING AND PAYING therefore yearly and every year, the Reddendum of yearly rent or sum of £ -- () clear of all taxes, rates,
tos a certain yearly
(6) Rent, even if reserved to the wrong person, will in most cases Method of re. follow the reversion ; (Darrell v. Wilson, Cro. Eliz. 645 ; Sacheverell serving rent
assessments, and deductions, except land-tax, by equal
day of — now next ensuing, and the last payment
thereof to be made on the day of — , next preced--of additional ing the end of the said term : AND ALSO YIELDING AND contingent
PAYING &c. [additional rents for converting pasture land
into arable, and for misusing arable land, supra, p. 47]: Covenants by And the said G. H. doth hereby for himself, his heirs,
executors, administrators, and assigns, covenant with the said A. B. and C. D., their heirs and assigns, and also as a separate covenant with other the person or persons who, under the limitations of the said indenture of the day
when the lessor v. Froggatt, 2 Saund. 367 ; Co. Litt. 213. b., n. (1); ante, Vol. 1, tit. is seised or LEASES); and it is well settled, that rent reserved in a lease under a possessed only for a partial
power to “ the said (donee), his heirs and assigns, and such person estate.
and persons to whom” the hereditaments, after the donee's death, should belong; or to the donee and his heirs simply, will follow the reversion. (Whitlock's case, 8 Rep. 69 b; S. C. 1 Brownl, 169; Hotley v. Scott, Lofft, 316 ; S. C. nom. Lord Tankerville v. Wingfield, 2 Brod. & Bing. 498 ; Campbell v. Leach, Amb. 740; see, too, 2 Chance on Powers, 316).
In a recent case, lands were settled to the use of trustees for 1,000 years, and subject to the term to a person for life, with remainder to trustees for 2,000 years, and subject thereto to such uses as A. should appoint, and in default of appointment, to him for life, with remainder to his children in tail, with remainders over, and a power was given to the first tenant for life to demise for seven years from her death; and the tenant for life made a lease under the power, reserving rent“ to A., or the person for the time being entitled to the freehold or inheritance of the premises, immediately expectant on the death of” the tenant for life ; and it was held, that an assignee of the term of 1,000 years was the reversioner entitled to the rent reserved by the lease, and might distrain for it. (Rogers v. Humphreys, 4 Ad. & Ell. 299; S. C. 5 Nev. & Man. 511). But in Whitlock's case, it was said, and the recommendation should always be acted on in practice, “ that the most clear and sure way is, to reserve rent yearly during the term, and leave the law to make distribution, without an express reservation to any one.” This observation of course applies, not merely to leases under powers, but to all cases in which the lessor is seised or possessed for a partial estate of the property to be demised.
of — , shall for the time being be entitled to the hereditaments hereby limited and appointed in reversion immediately expectant on the term hereby created (e) in manner
(c) If a tenant for life, with a power of leasing, make a lease by With whom the virtue of his power, and the lessee enter into covenants (of such lessee should nature as run with the land) with the tenant for life, his heirs and
leases under assigns, the benefit of those covenants will enure to the remainder- powers. man, as an assignee of the reversion, under the statute 32 Hen. 8, c. 28, so as to enable him to sue upon them in his own name as assignee. (Isherwood v. Oldknow, 3 Mau. & Sel. 382; see too Whitfield v. How, 1 Vent. 238 ; S. C. Sir T. Jones, 110). In the case in the text, the trustees A. B. and C. D. had the legal estate as well as the power of leasing, and therefore the lessee properly enters into his covenants with them, their heirs and assigns. It may, however, be doubted, whether the covenant should not be with the donees of the power and their assigns, for the remainder-men are not the heirs, but only the assigns of the covenantees. The propriety of the latter part of the covenant too is very disputable ; for a person not named in a deed cannot recover upon it, (Green v. Horne, 1 Salk. 197), and no person can recover upon an indenture which is made between parties, unless he be either a party to it himself, or claim through a party. (Scudamore v. Vandenstene, 2 Inst. 673; 2 Roll. Abr. 22; Faits, F. (1.); Clements v. Henley, Id. (2.); Berkeley v. Harvey, 5 B. & C. 355; Lord Southampton v. Brown, 6 B. & C. 718; Gardner v. Lachlan, 8 Sim. 123). And therefore, even if the persons described as reversioners could be considered to be sufficiently named by the description, yet they could not sue on the covenants, as not being parties, or claiming through parties to the deed, except as assignees under the statute, and then they could sue by virtue of their statutable right, and not as covenantees in their own right under the deed.
In a modern case, a tenant for life, with a power of leasing, and a receiver appointed by the Court of Chancery, granted a lease, and the lessee covenanted “to and with the said [receiver], and other the receiver or receivers for the time being, and to and with such other person or persons as for the time being should or might be entitled to the freehold or inheritance, or to the rents and profits of the said premises, and to and with every of them;" and the tenant for life died, and an action was brought by his executrix against the lessee, for breaches of covenant committed in the lifetime of the tenant for life ; but the Court held, that the covenant was joint, and that the receiver ought to have joined in the action. (Southcote v. Hoare, 3 Taunt. 87).
The converse case, viz. whether the remainder-man would be Whether re. bound by the covenants of the tenant for life, donee of the power, mainder-man