Covenant for renewal by donee of power, when enforceable. Acts to authorize leases of shall, as against the person giving such receipt, &c., be deemed a confirmation (g). A tenant for life with a power of leasing at the best rent, &c., may, in a lease granted under the power, covenant for a renewal, and the covenant will be enforced if at the time for its performance, the new lease reserves the best rent that can be obtained, and contains any stipulation authorised by the power (h). If the settlement contained no power of leasing, it was formerly necessary to obtain a private Act of settled estates Parliament to remedy the defect. But in 1856, an now consoli dated. Act of 1877 enables tenants for life, &c., to grant leases without any application Act was passed to authorize sales and leases of settled estates, and was followed by amending Acts in subsequent sessions. All these Acts have been repealed, and their provisions consolidated by the Settled Estates Act, 1877 (i). any This Act enables any person entitled to the possession or receipt of the rents and profits of any settled estates (as defined by the Act), for an estate for any life, or for a term of years determinable with life or to the Court. lives, or for any greater estate, either in his own right, or in right of his wife (in the absence of any express declaration to the contrary in the settlement), and also any person entitled to the possession or receipt of the rents and profits of any unsettled estates as tenant by the curtesy, or in dower, or in right of a wife seised in fee, without any application to the Court, to demise the same except the principal mansion, and the lands usually occupied therewith, for any term not exceeding twenty-one years as regards estates in England, or for any term not exceeding thirty-five years as regards estates in Ireland, to take effect in possession or within one year from the making thereof, provided that the demise be by deed, and at the best rent without any premium, and be not without impeachment of waste (k), and contain a covenant to pay the rent and such other usual and proper covenants as the lessor shall think fit, (g) Sect. 2. (h) Gas Light Compy. v. Towser, (i) 40 & 41 Vict. c. 18. to keep the premises in repair, "fair wear and tear and damage by fire excepted," is void under the above Act. Davies v. Davies, 38 C. D. 499. and a condition of re-entry on non-payment of rent for twenty-eight days; and provided a counterpart be executed by the lessee (1), and the execution of the lease by the lessor is made sufficient evidence of the execution of the counterpart by the lessee (m). of similar The Act of 1856 (n) contained a clause similar to the Construction above section in the present Act, except that the person clause in to exercise the power was "any person entitled to the former Act. possession, &c., for an estate for life," instead of "for an estate for any life." Upon the construction of that clause, it was held that under a trust directing the trustees to receive the rents and apply them in paying certain charges, and to pay the surplus to A. for his life, A. could not exercise the power of leasing, as in such a case the trustees, and not A., are to have the management (o). But this case is not to be taken as a decision that a tenant for life who is to receive the rents and profits during his life through the intervention of a trustee is not within the Act (p). Justice may The Settled Estates Act, 1877, also empowers the High Court of High Court of Justice to authorize leases of settled authorize estates including building and mining leases, upon the leases. terms and conditions mentioned in the Act. leasing con Act. The power of leasing conferred by sect. 46 of the Power of Settled Estates Act is now supplemented by the more ferred by extensive powers contained in the Settled Land Act, Settled Land 1882, amended by the Settled Land Act, 1884. Under these Acts (9) (which are printed at length in an Appendix to this volume), tenants for life () and other limited owners (s) may grant leases of settled land for terms not exceeding, as regards building leases, ninetynine years, mining leases sixty years, and other leases twenty-one years, subject to the conditions prescribed by the Act (t), and in certain cases may, with the sanction of the Court, make leases for longer terms (1) Sect. 46. (m) Sect. 48. (n) 19 & 20 Vict. c. 120, s. 32. (0) Taylor v. Taylor, L. R. 20 Eq. 297. 147. (P) Taylor v. Taylor, 3 Ch. D. (g) 45 & 46 Vict. c. 38; 47 & 48 Vict. c. 18. (r) Act of 1882, s. 6. Sect. 58, which defines the persons who are to have all the powers of a tenant for life. (t) Sects. 6 to 17. Under mining of rent to be lease, portion capitalized. Notice of or building grants in perpetuity (u). It is provided, however, that under a mining lease a portion of the rent reserved, viz., three-fourths, where the tenant for life is impeachable for waste, and otherwise one-fourth part shall be capitalized (x); and it is also provided must be given that before granting a lease, the tenant for life shall give a month's notice of his intention in that behalf to each trustee of the settlement, and also to the trustees' solicitor, if known to him (y), but the notice may be Power how to waived (2). The power may be exercised when the intended lease to trustees. be exercised when tenant for life is an infant or married woman. Powers of Act are cumulative. Advantage of power in Act exercising of 1877 in some cases. tenant for life is an infant by the trustees of the settlement (a), and where she is a married woman with the concurrence of her husband, unless she is entitled for her separate use, in which case the husband's concurrence is unnecessary, and a restraint on anticipation will not prevent her from exercising the power (b). The powers given by the Act are cumulative, and do not preclude or interfere with the exercise of any powers for the same purpose conferred by the settlement or by any other Act (c). It follows that a lease for twenty-one years may still be granted by a tenant for life under sect. 46 of the Settled Estates Act, 1877, and it may sometimes be found convenient to resort to this power, so as to save the necessity of giving the notice required by sect. 45 of the Act of 1882. Again, may be leased, where there is an where there is an open mine on the settled estate, the tenant for life may lease it for twenty-one years under the former Act, without being obliged to consent to the capitalization of any part of the rent under sect. 11 of the latter Act (d). Open mine without capitalizing rent. Act applies to property held on trust for sale. Leasing power of mortgagor Where land is held by trustees on trust for sale, the tenant for life or other limited owner of the proceeds of the sale may exercise the powers of the Act with the leave of the Court (e). As regards mortgages made after the 31st December, and of mort- 1881, the Conveyancing Act, 1881, s. 18, enables a mortgagor while in possession, and also a mortgagee gagee in possession. in possession (except where a contrary intention is expressed in the mortgage deed) to make agricultural or occupation leases for any term not exceeding twenty-one years, and building leases for any term not exceeding ninety-nine years, subject to the following conditions: (1) Every lease must be made to take effect in possession not later than twelve months after its date. (2) It must reserve the best rent that can reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken. (3) It must contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified not exceeding thirty-one days. (4) A counterpart must be executed by the lessee and delivered to the lessor, of which execution and delivery the execution of the lease by the lessor is, in favour of the lessee, sufficient evidence. (5) Every building lease is to be made in consideration of the lessee or some person by whose direction the lease is granted, having erected, or agreeing to erect within not more than five years from the date of the lease, buildings, new or additional, or having improved or repaired buildings, or agreeing to improve or repair buildings, within that time, or having executed or agreeing to execute within that time, on the land. leased, an improvement for or in connexion with building purposes. (6) In any building lease a peppercorn rent, or a nominal or other rent less than the rent ultimately payable, may be made payable for the first five years, or any less part of the term. (7) In case of a lease by the mortgagor, the lessor must, within one month after making the lease, deliver a counterpart to the mortgagee, or, where there are more than one, to the mortgagee first in priority, but the lessee need not see that this provision is complied with. ecclesiastical The powers of ecclesiastical persons and bodies to Leases by grant leases are regulated by the Acts of Parliament persons and mentioned below (ƒ). The general effect of these (f) 32 Hen. 8, c. 28; 1 Eliz. 18 Eliz. c. 11;39 & 40 Geo. 3, c. 19; 13 Eliz. c. 10 ; 14 Eliz. c. 11; c. 41; 5 & 6 Vict. c. 27. bodies. Lessce estopped from disputing his but may show that it has expired. enactments is to prohibit leases for more than twentyone years or three lives, except as regards houses in towns, which may be demised for forty years, and incumbents must obtain the confirmation of the patron and ordinary in order to bind their successors. Other restrictions are imposed by the Acts (g). The remedial clauses in the Act 12 & 13 Vict. c. 26, above referred to do not apply to ecclesiastical leases (h). IX. Other matters relating to leases. A tenant cannot, during his possession of the premises demised, dispute the title of the landlord under landlord's title, whom he entered (i), and this rule extends to an undertenant (k). But a tenant may show that the landlord's title has expired (1), and he may do that (among other ways) by showing an eviction either actual or constructive. Thus, if a tenant is evicted by a title paramount to the lessor's, he may plead such eviction, and it would seem that it is not necessary that he should wait to be actually evicted, but that if he attorns to a party who has a right to evict him, and has actually commenced proceedings for that purpose, that is equivalent to an eviction (m). But a mere payment of rent to a party who threatens expulsion is not a constructive eviction (n). Estoppel applicable to action for trespass. nant for quiet enjoyment. The doctrine of estoppel is applicable to an action for trespass as well as for ejectment (0). Upon every demise, whether under seal or by parol, Implied cove- there is, in the absence of express covenant, an implied contract on the part of the lessor that he has a right to demise, and for quiet enjoyment by the lessee absolutely; and, consequently, if a tenant is evicted (g) See Bacon Ab. Tit. Leases E.; Jenkins v. Green, 28 Beav. 87. (h) Sect. 7. (i) Doed. Knight v. Lady Smythe, 4 M. & S. 347; Wood v. Day, 1 Moore, 389; Co. Lit. 47 b; 1 Wms. Saund. 325; Att.-Gen. v. Lord Hotham, 3 Russ. 415; Fleming . Gooding, 10 Bing. 549; Francis v. Doe, 4 M. & W. 331. (k) London & N. W. Railway Compy. v. West, L. R. 2 C. P. 553. (7) 1 Wms. Saund. 418; Neave v. Moss, 1 Bing. 360; Hopcroft v. Keys, 9 Bing. 613. (m) Mayor, &c. of Poole v. Whitt, 15 M. & W. 571; 16 L. J. Ex. 229. (n) Delaney v. Fox, 2 H. & N. 426; 26 L. J. C. P. 248. (0) Delaney v. Fox, ubi supra. |