Henry Smith Plaintiff in Error v. The Earl of Jersey and Others Defendants in Error [1821] UKHL 3_Bligh_290

UKHL

Henry Smith Plaintiff in Error v. The Earl of Jersey and Others Defendants in Error

[1821] UKHL 3_Bligh_290

REPORTS OF CASES HEARD IN THE HOUSE OF LORDS UPON APPEALS AND WRITS OF ERROR, And decided during the Session 1821, 2 Geo. IV.

ENGLAND.

(EXCHEQUER CHAMBER.)

No. 16

Henry Smith Plaintiff in Error v. The Earl of Jersey and Others Defendants in Error

1821 .

G. V. V. and L. B. from time to time during their respective lives, when and as they should respectively be in possession of the lands, &c. by indenture or indentures, under their respective hands and seals, attested by two or more credible witnesses, to demise such parts of the lands, &c. as now are leased for lives, or for years determinable on lives, in possession or reversion for lives, or for any number of years determinable on lives, so as there be not any greater estate or interest subsisting at any one time than what will wear out or be determinable on the droping of three lives, and so as on every such lease there be reserved and made payable, during the continuance of the estates and interests thereby to be demised, leased, or granted respectively, the ancient and accustomed duties and services, or more, or as great or beneficial rents, duties and services, or more, as now are, or at the time of demising or granting the premises so to be demised, leased, or granted respectively, were reserved or made payable for the same premises respectively, or a just proportion, &c. (except heriots, &c.) all such rents, duties, and services respectively, to be incident to and go along with the reversion and remainder of the same premises expectant on the determination of the respective demises, &c. and so as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved, and so as, &c. &c.: and also by indenture under hand and seal, attested as aforesaid, to demise all or any of the lands, &c. for any term absolute, not exceeding twenty-one years, to take effect in possession, &c. so as upon every such lease there be reserved, during the continuance of such lease, so much or as great and beneficial yearly and other rent, and services proportionably, as now is paid, or the best and most improved yearly rent, &c. without taking any fine, premium, or foregift, &c.; and so as in every such lease for any term of years absolute respectively, there be contained a clause of re-entry in case the rent or rents thereupon to be reserved be behind or unpaid by the space of twenty-eight days after the times thereby respectively appointed for payment thereof: and also by indenture under hand and seal, attested as aforesaid, to demise the lands, &c. wherein any mine, &c. and then were as great and beneficial as any which at the time of making the deed, or at any time thereafter, were or had been reserved in respect of the premises demised.

A Power reserved upon a marriage settlement to Tenants for life to grant or renew leases for lives, provided that a right of re-entry is reserved upon such leases for non-payment of rent, is well executed by a lease for lives providing a re-entry in case the rent remains in arrears fifteen days, and there is no sufficient distresses on the premises.

B. M. being seised, &c. in fee of lands, &c. devised the lands, &c. to his daughter, L. B. for life, with remainders over; with a power to her in consideration of marriage, either before or after marriage, of revocation and appointment. B. M. died seised, without altering his will, leaving his daughter, L. B. seised of the lands, &c. for life, with power, &c.

L. B. intermarried with G. V. V.

Before the marriage, L. B. being seised as aforesaid, by deed, in conformity with the power in the will of B. M. and in consideration of the marriage, revoked the uses and devises contained in the will, and appointed and limited the lands, &c. to F. Earl of G. and C. M. and their heirs, in trust, to hold the same to the uses before limited, until after the marriage, and then to the use of G. V. V. for life, remainder to L. B. (the grantor) for life, remainder to preserve, &c.; and after the decease of the survivor of them to divers other uses for the benefit of their issue; and in default of issue to the use of the will of L. B .; and in the mean time to the use of L. B. her heirs and assigns.

In the deed was contained a leasing power to and for

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On the 5th September 1803, G. V. V. being seised of the lands for life, by an indenture of lease, in consideration of, &c. let premises, part of the lands, in settlement, which had been and were then under a lease for years determinable on lives, to C. S. and H. S., their executors and administrators, for ninety-nine years, if C. S., H. S. and J. S. , or either of them, should so long live, yielding, &c. the yearly rent of 2 l. at Michaelmas and Lady Day, and one couple of fat capons on, &c.

The indenture contained a covenant by the lessees for the payment of a proportion, &c.; and a covenant for the payment of the yearly rent of 2 l ., and for the performance of the duties, &c. And also a proviso:

“that if it should happen at any time during the estate thereby granted that the said yearly rent or sum of 2 l ., and every or any of the duties, services, reservations and payments thereby reserved, or any part thereof, should be behind, unpaid, or undone, in part or in all, by the space of fifteen days next over or after any or either of the days or times whereat or whereupon the same ought to be paid, done, or performed as aforesaid, and no sufficient distress or distresses can or may be had and taken upon the said premises , whereby the same and all arrearages thereof, if any be, may be fully raised, levied and paid, &c.; or if any default should be made in the payment or performance of all or any of the reservations, covenants and agreements thereinbefore contained, that then and from thenceforth, in all or any or either of the said cases, it should be lawful to and for the said G. V. V. , his heirs and assigns, and the person and persons to whom the freehold or inheritance of the premises should belong, into the premises, &c. to re-enter, and the same to have, hold, retain, possess and enjoy, as in his and their former estate, &c.”

After the death of the tenants for life, upon a trial in ejectment by the grantees of the devisee under the will of L. M ., against the parties holding under this demise, it was found by special verdict, that the rents, duties, reservations, and payments reserved by the indenture, and secured by the render, covenants, and power of re-entry therein contained, at the time of making the indenture, were ancient and accustomed,

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And that the usual and accustomed form of leases of the estate, contained in the settlement for lives or years determinable on lives, as well prior as subsequent that settlement, was, with a conditional proviso of re-entry, similar to that in the indenture of demise in question.

Held, affirming a judgment of the King's Bench, and reversing a judgment of the Exchequer Chamber, that the evidence from the former leases was properly admitted and introduced into the special verdict; and that the leases in question, according to the practice of conveyancers, was by implication within the terms of the power, and valid.

George , Earl of Jersey, Edward Ellice, and Alexander Murray, brought an ejectment in the Court of King's Bench in Michaelmas Term 1813, against Henry Smith, for the recovery of a tenement, with the appurtenances, called Tal-y-Coba-Uchaf, in the parish of Lansamlet in the county of Glamorgan, then in the possession of Henry Smith. There were two demises laid in the declaration; the first on the 11th July 1813, and the second on the 11th January 1814. Henry Smith defended and pleaded the general issue.

At the Summer Assizes in the year 1815, the cause was tried before Baron Wood, at Hereford, when a special verdict was found, stating in substance as follows:—

That the Honourable Bussey Mansel, afterwards the Right honourable Bussey Lord Mansel, Baron Mansel, of Margam, in the county of Glamorgan, being seised in fee of the premises in the declaration

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That Lord Mansel died on the 29th of November 1750, seised as aforesaid, without altering his will as to the said premises, leaving his daughter, Louisa Barbara, his only child him surviving, seised for life of the said premises.

That the said Louisa Barbara, on the 20th July 1757, intermarried with George Venables Vernon, the younger, afterwards the Right honourable George Venables Vernon, Lord Vernon, Baron of Kinderton, in the county of Chester.

That before the said marriage, the said Louisa Barbara, being seised as aforesaid, by deed dated the 2d July 1757, in conformity with the said power in the said will of the said Lord Mansel, and in consideration of the said marriage, revoked the uses and devises contained in the said will concerning the said premises, and appointed and limited the same to Francis Earl of Guildford and Charles Montague, and their heirs, in trust, to hold the same to the same uses as before limited until after the said marriage, and then to the uses of the said George Venables Vernon for life, without impeachment

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In the said deed was contained a leasing power in these words:

and premises, whereof they shall be so respectively in possession or entitled to the perception of the rents and profits as aforesaid, as now are leased for life or lives, or for years determinable on the dropping of a life or lives, to any person or persons, in possession or reversion, for one, two, or three lives, or for any number of years determinable on the dropping of one, two, or three lives, so as there be not on any part or parcel of the same premises to be demised, leased, or granted respectively, for a life or lives, or for years determinable on the dropping of a life or lives as before mentioned, any greater estate or interest subsisting at any one time than what will wear out or be determinable on the dropping of three lives, and so as on every such respective lease, demise, or grant for a life or lives, or for years determinable on the dropping of a life or lives, there be reserved and made payable during the continuance of the estates and interests there by to be demised, leased, or granted respectively, the ancient and accustomed yearly rents, duties, and services, or more, or as great or beneficial rents, duties and services, or more, as now are, or at the time of demising or granting the premises so to be demised, leased, or granted respectively, were reserved or made payable for or in respect of the same premises respectively, or a just proportion of such ancient or the present reserved rents, duties, and services, or more, according to the value of the premises so to be demised, leased or granted respectively (except heriots, which shall or may be varied, or altered or compounded for, according to the will and pleasure of the said George Venables Vernon the younger, and Louisa Barbara Mansel), all such rents, duties, and services respectively, to be incident to and go along with the reversion and remainder of the same premises, expectant on the determination of the said respective demises, leases, and grants thereof, and so as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved; and so as the respective lessees to whom such lease or leases shall be made as aforesaid be not, by any express clause to be contained in any such leases respectively, freed from impeachment of waste; and so as the said respective lessee or lessees, to whom any such leases or lessee shall be made respectively as aforesaid, doth and do seal and deliver a counterpart or counterparts of such lease or leases respectively: and also by indenture or indentures under their respective hands and seals, attested as aforesaid, to demise, lease, or grant all or any of the said manors, messuages, lands, hereditaments and premises, and parts and shares of manors, messuages, lands, hereditaments and premises, or any of them, so limited to them the said George Venables Vernon the younger and Louisa Barbara Mansel, his intended wife, for their respective lives as aforesaid, for any term or number of years absolute, not exceeding twenty-one years, to take effect in possession, and not in reversion, or by way of future interest, so as upon every such lease for an absolute term not exceeding twenty-one years there be reserved and made payable, during the continuance of such lease or leases, so much or as great and beneficial yearly and other rent and rents, and other services proportionably, as now is and are therefore paid and yielded, or the best and most improved yearly rent and rents that can be reasonably had or obtained for the same, without taking any fine, premium, or foregift, or any thing in the nature or in lieu thereof, to be incident to and go along with the reversion and remainder of the same premises expectant on the determination of the said respective leases; and so as the respective lessees, to whom such lease or leases shall be made, be not, by any express clause to be contained in any of such leases respectively, freed from impeachment of waste; and so as the said respective lessee and lessees, to whom any lease or leases shall be made respectively as aforesaid, doth and do seal and deliver a counterpart or counterparts of such lease or leases respectively; and so as in every such lease for any term of years absolute respectively there be contained a clause of re-entry, in case the rent or rents thereupon to be reserved, be behind or unpaid by the space of twenty-eight days after the times thereby respectively appointed for payment thereof: And also by indenture or indentures under their respective hands and seals, attested as aforesaid, to demise, lease, and grant all or any part of the lands, hereditaments and premises so limited to them the said George Venables Vernon the younger, and Louisa Barbara Mansel, his intended wife, for their respective lives as aforesaid, wherein or whereupon any mine or mines now is or are open, or wherein or whereon any person or persons shall be willing to open any mine or mines, sough or soughs, or other thing or things whatsoever, which may be requisite and necessary for the digging and getting of lead or copper ore, or any metal or mineral whatsoever, unto any person or persons, for any term or number of years not exceeding thirty-one years, to take effect in possession and reversion, or by way of future interest; and so as upon every such lease for an absolute term, not exceeding thirty-one years, there be reserved and made payable, during the continuance of such lease or leases, such part or share of the lead, coper ore, coal, and other produce to be gotten from the said mines, or such yearly rent or income in respect thereof, as can reasonably be had or obtain for the same, without taking any fine, premium or foregift, or any thing in the nature or in lieu thereof, to be incident to and go along with the reversion remainder of the same premises expectant, on determination of the said respective leases; and so as the respective lessees to whom such lease or leases shall be made, be not, by any express clause to be contained in any of such leases respectively, freed from impeachment of waste, other than in the necessary and reasonable winning or working thereof; and so as the said respective lessee and lessees, to whom any lease or leases shall be made respectively as aforesaid, doth and do seal and deliver a counterpart or counterparts of such lease or leases respectively; and so as there be also inserted such proper and usual covenants for the effectually winning and working the said mines and smelting the ore, and doing all other proper and necessary acts, as are usually inserted in leases of the like nature.”

“Provided always, and it is hereby further declared and agreed, by and between said parties to these presents, that it shall and may be lawful to and for the said George Venables Vernon the younger, and Louisa Barbara Mansel, his intended wife, from time to time, during their respective lives, when and as they shall respectively be in possession of or entitled to the perception of the rents and profits of the manors, messuages, lands, hereditaments and premises, so limited to them for their respective lives as aforesaid, by indenture or indentures, under their respective hands and seals, attested by two or more credible witnesses, to demise, lease, or grant such part or parts of the said manors, messuages, lands, tenements and hereditaments, or parts or shares of manors, messuages, lands, tenements, hereditaments

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The said George Venables Vernon after the said marriage became seised for life of the said premises, and entitled to the receipt of the rents, &c.

Before the making the said deed of settlement, and until the surrender hereafter mentioned, the said premises were under lease for a term of years determinable on the lives of three persons, who died before the 11th day of July mentioned in the declaration.

On the 5th September 1803, the said George Venables Vernon being seised of the said premises as aforesaid, and entitled to and in receipt of the rents, &c. by an indenture, of lease between him (then Lord Vernon) of the one part, and Charles Smith (since deceased), and the said Henry Smith of the other part, in consideration of the surrender of the said former lease, and of 105 l . paid to the said Lord Vernon by the said Charles and Henry Smith, and of other matters in the said indenture specified, let the said premises called Tal-y-Coba-Uchaf to the said Charles Smith and Henry Smith, their executors and administrators, for ninety-nine years from the date of the said indenture, if the said Charles Smith, Henry Smith, and John Smith, son of the said Charles, or either of

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The said indenture contains a covenant by the said lessees for the payment of a proportion of the said reserved rent, in case the term should determine between any of the days of payment by the death of the persons named in the said lease; also a covenant by the said lessees for the payment of the said yearly rent of 2 l ., and for the performance of the duties, heriots, suits, services, &c. at the times and in the manner limited and appointed in the said lease. And the said lease contains a proviso in these words:

administrators or assigns, or undertenants, or any of them, shall suffer and leave the said premises, or any part thereof, to continue in decay or unrepaired, by the space of six calendar months next after such view had, and notice given or left as aforesaid, or shall do or commit, or cause or suffer to be committed or done, any wilful waste, spoil, or destruction in or upon the said premises, or any part thereof, or shall at any time during the said term grind any part of their corn or grain at any other mill than such mill so to be appointed by the said George Lord Vernon, his heirs or assigns, or such person or persons to whom the freehold or inheritance of the premises shall as aforesaid belong (the same being in repair and order to grind such corn and grain,) or if the said Charles Smith and Henry Smith, their executors and administrators, or any or either of them, shall at any time during the estate hereby granted give, grant, bargain, sell, assign, or otherwise depart with this present demise and lease, or with their or either of their estate or interest herein, without the license and consent of the said George Lord Vernon, his heirs or assigns, or of the person or persons to whom the freehold or inheritance of the premises shall as aforesaid belong, in writing, under his or their hands thereunto first had and obtained, or if any default shall be by them, the said Charles Smith and Henry Smith, their executors, administrators or assigns, made in the payment or performance of all or any of the reservations, covenants, and agreements hereinbefore on their parts contained, that then and from thenceforth, in all or any or either of the said cases, it shall and may be lawful to and for the said George Lord Vernon, his heirs and assigns, and the person and persons to whom the freehold or inheritance of the premises shall as aforesaid belong, into and upon the said premises hereby demised, and into every part and parcel thereof, wholly to re-enter, and the same to have, hold, retain possess, and enjoy, as in his and their former and proper estate, against the said Charles Smith and Henry Smith, their executors, administrators or assigns, these presents, or any thing herein contained to the contrary thereof in anywise notwithstanding.”

“Provided always, that if it shall happen at any time during the said estate hereby granted, that the said yearly rent or sum of 2 l. and every or any of the duties, services, reservations and payments hereby reserved, or any part thereof, shall be behind, unpaid , or undone, in part or in all, by the space of fifteen days next over or after any or either of the days or times whereat or whereupon the same ought to be paid, done, or performed as aforesaid, and no sufficient distress or distresses can or may be had and taken upon the said premises, whereby the same and all arrearages thereof, if any be, may be fully raised, levied, and paid, or if the said Charles Smith and Henry Smith, their executors,

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The said lease does not contain any other than the above-recited power of re-entry for non-payment of the rent reserved. The said Charles Smith and Henry Smith executed and delivered a counterpart of the said lease.

The rents, duties, reservations and payments reserved by the said indenture, and secured by the render, covenants, and power of re-entry therein contained, at the time of making the said indenture, were ancient and accustomed, and then were as great and beneficial as any which at the time of making the deed of 2d July 1757, or at any time thereafter, previous to making the said indenture of 5th September 1803, were or had been reserved, in respect of the said premises demised by the said indenture.

The premises demised by the said indenture, and

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The usual and accustomed form of leases of the estate, contained in the said settlement of 2d July 1757, for lives, or years determinable on lives, as well prior as subsequent to that settlement, was, with a conditional proviso of re-entry, similar to that in the said indenture of 5th September 1803.

All the rents, duties and services reserved by the said indenture, which accrued in the lifetime of Lord Vernon, have been discharged and performed; and the said Henry Smith has been ready to pay and perform all things that would have accrued to this time, supposing the said indenture to have continued in force and undetermined.

The said Charles Smith died on the 1st January 1813; the said Henry Smith and John Smith are still living.

The said Louisa Barbara, by virtue of the said powers to her granted, made her will, dated 5th August 1783, duly attested, signed and published, and thereby devised the said premises, subject to the estate for life of her said husband therein, unto Thomas Earl of Clarendon for life, remainder to William Augustus Henry Villiers, afterwards William Augustus Henry Villiers Mansel, second son of George Bussey Villiers Earl of Jersey, and his heirs.

The said Louisa Barbara died on the 1st January 1786 without issue, and without altering her said will as to the said devise of the said premises.

The said Earl of Clarendon died on the 1st January 1787, whereupon the said William Augustus

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By indentures of lease and release, the former bearing date the 4th January 1812, and the latter the 6th January 1812, the said William Augustus Henry Villiers, being so seised of the said remainder as aforesaid, conveyed the same to George Earl of Jersey, Edward Ellice, and Alexander Murray, who thereupon were seised of the said last-mentioned remainders.

Lord Vernon afterwards, and before the 11th of July, the day mentioned in the declaration, died, whereupon said George Earl of Jersey, Edward Ellice, and Alexander Murray, were seised in fee of the said premises.

The special verdict then finds the leases by the Earl of Jersey, Edward Ellice, and Alexander Murray, the lessors of the plaintiff, in support of the several demises in the first and second counts of the declaration mentioned, also the entries and ousters as in the declaration mentioned, and concludes in the usual form, referring the matters the court.

This special verdict was argued before the judges of the Court of King's Bench, at Serjeant's Inn, at the sittings holden there before Michaelmas Term 1816, and in the ensuing term the Court pronounced their judgment for the defendant. *

From this judgment the plaintiffs brought their writ of error into the Exchequer Chamber, where

Footnote

* 5 Maule and Selwyn, p. 467.

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For the plaintiff in error:

1st. The intention of the donor of a power is to be collected from the whole of the deed whereby that power is created; from the plan and design of it as well as the words, and also from the circumstances of the property which is by him subjected to the operations of that power; and in the construction of the particular instrument executed under such power, the law will expound it with an inclination to preserve rather than to destroy the instrument, “ ut res magis valeat quam pereat;” ut res magis valeat quam pereat;” “It is the office of a judge to preserve, not to destroy an estate.” †

2d. The only objection raised to the lease under which the plaintiff in error holds is, that the proviso for re-entry therein contained is not such as is required by the leasing power under which it was granted by Lord Vernon, as not being absolute, unconditional, and capable of being enforced instanter upon every default of payment of rent, on the very day on which such default takes place; but the words

Footnote

* 1 Bing. and Brod. p. 97; 3 Moore, p. 339.

† See Cother v. Merrick , Hardr. 93, per Parker, Baron.

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3d. If the language of the leasing power has been

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4th. If the literal language of the condition be not violated, and there be nothing in the spirit of the leasing power giving a meaning beyond the words used, the principle which has hitherto governed in cases of this kind must govern in this case, which is, that where a special clause of re-entry is prescribed by the power, that clause cannot be departed from, even in trivial circumstances, without defeating the lease made under the power; the donor of the power being in this respect the legislator, and having a

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5th. In considering whether the lease be bad on the ground of any excess in the indulgence given to

Footnote

* 13 East, 118.

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6th. If the terms of the power be such as to leave the terms of the proviso unfettered by positive direction, there seems little reason to quarrel with the extent of the indulgence, in point of time, granted to the lessee; and such has been the concession throughout the argument of this case. Much more fault has been found with the latter qualification of the proviso, by those who have argued for the defendant in error, viz. with that part which restrains the right of re-entry to the case where no sufficient distress or distresses may be had or taken upon the premises. The reasonableness of this qualification, as applied to the particular rents reserved in these leases, and the nature of the property leased, has been already pointed out: in addition however it is to be observed, that the statute law has not only spoken the same language, but it may be doubted whether it has not restricted all lessors from exercising any right of re-entry not guarded by this reasonable qualification. The 4th Geo. II. ch. 28. s. 2, provides, that as often as it shall happen “that one half year's rent shall be in arrear,” the lessor “ shall and may” shall and may” without any formal demand or re-entry, serve a declaration in ejectment for the recovery of the premises; and in case of judgment against the casual ejector, if it shall be made appear to the court that half a year's rent was due before the declaration was served, “and that no sufficient distress was to be found on the demised premises,” and that the lessor had power to re-enter, then he

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For the Defendants in Error:

1st. The leasing power in the marriage settlement of 1757 (a power granted by a person having the absolute dominion of the fee to a purchaser of a life-estate), expressly requires that the leases shall contain “a power of re-entry for non-payment of the rent thereby to be reserved,” which makes it necessary, that the right to re-enter should attach immediately on the rent being unpaid; whereas the lease under which the Defendant, in the ejectment claims, postpones the right of re-entry foro fifteen days after the day of payment, thus depriving the reversioner of a part of that benefit which by the condition annexed to the leasing power was intended to be secured to him. If such postponement be allowed for 15 days, why may it not be allowed for 30, 40, 100, or any other number of days so great as to make the power of re-entry nearly or quite unavailing? Where is the line to be

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2d. The lease in question is liable to the further objection, that the leasing power requires that the lease shall contain “a power of re-entry for non-payment of the rent thereby to be reserved ,” whereas the lease contains no such power, but only gives the lord a right to re-enter for the absence of distress for rent unpaid. The meaning of the words of the leasing power is perfectly plain and unequivocal; “a power of re-entry,” means something enabling a man to re-enter, and “a power re-entry for the non-payment of the rent” signifies something enabling a man to re-enter on the occasion, or for the cause of non-payment of rent; now the lease in question certainly does not enable the reversioner to re-enter on such occasion, or for such cause; inasmuch as the whole rent for any number of years may be unpaid, and yet he may not be enabled to re-enter. In the case of Coxe v. Day * , this point was expressly decided.

3d. It is said, in support of the lease, that the

Footnote

* 13 East, 118.

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4th. The power of re-entry in the lease is not only different from that required by the leasing power, but much less beneficial to the reversioner. Under an absolute power of re-entry, the reversioner would be entitled to succeed in an ejectment, on proving the rent in arrear, a demand made, and the execution of the counterpart of the lease by the Defendant. Under a power to re-enter on failure of distress, it would be necessary for him to prove that he had searched every part of the premises demised,

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5th. The finding of the Jury, that the usual and accustomed form of leases of the estate contained in the marriage settlement was with a conditional proviso of re-entry, ought not to be taken into consideration in deciding this case. The words of the leasing power are “a power of re-entry for non-payment of the rent thereby to be reserved;” they contain no reference to the former practice of leasing the estate, nor is there any fact stated on the special verdict which raises any ambiguity in them; and a provision contained in a written instrument may not be explained or construed by any extrinsic matter, except in two cases; first, when the provision refers to extrinsic matter; secondly, when its terms contain a latent ambiguity, that is,

Footnote

* Rees v. King , Forrest. Exch. 19.

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6th. Even supposing the former practice on the estate might legally be taken into consideration, it is far from affording any inference favourable to the lease in question. It is not found that the former leases were granted under similar powers. There is nothing to show that the creator of the power was not dissatisfied with the former clauses of re-entry, and did not insert the provision in question for the very purpose of introducing a new one, which might well be, for the reasons stated above. And this is the more probable, because the leasing power, in several instances, expressly refers to the former practice on the estate, where it was intended that the tenant for life should be guided by it; there is no such reference in the clause relating to powers of re-entry; the inference is, that the practice was not intended to prevail with respect powers of re-entry.

For the Plaintiffs in Error, the Attorney General and Mr. Puller.

For the Defendants in Error, Mr. Jervis and Mr. Maule * .

In the course of the argument the Lord Chancellor observed, that if the settlement had said there should be “a reasonable power of re-entry,” somebody

Footnote

* The arguments and authorities cited are all noticed in the opinions delivered by the Judges and the Lords in moving judgment. The argument in detail is therefore omitted.

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After the argument, the Lord Chancellor proposed the following question for the opinion of the Judges:

Whether, having due regard to the true intent and meaning of the indenture of the 2d July 1757, according to the legal construction of the several parts of that indenture as stated in the special verdict, and having also due regard to the legal effect of all the facts and circumstances found by the special verdict, the demise of the 5th September 1803, as the same is stated in the special verdict, is for any and what reasons invalid?

There being a difference of opinion, the twelve Judges, in answering this question, delivered their opinions seriatim .

16th & 18th May.

Richardson, J .—After having shortly stated the case, the proceedings, and the question put to the Judges, proceeded thus:

I am of opinion that the lease of 1803 is invalid, because I think it is not made in conformity with the leasing power contained in the indenture of 1757.

The leasing power for that class of leases, of which the lease in question is one, requires that “there be contained in every such lease a power of

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In order to decide this, I must first consider, whether the words themselves import and convey any distinct meaning: and I think they do; I think they mean, that the lessor should have power to re-enter if the rent reserved should not be paid according to the reservation.

One test, and, I think, a fair one, whether such meaning is conveyed by the words of this power, would be to insert in a lease a proviso for re-entry, expressed as nearly as possible in the very words of the power itself, and then to consider what construction a proviso so expressed would require, and whether the meaning would be sufficiently distinct to be capable of being enforced by a court of justice.

Suppose, then, in the lease of 1803, it had been provided, that it should be lawful for the lessor or person entitled to the rent, “to re-enter for non-payment of the rent hereby reserved.” In that case would the person entitled to the rent have been empowered to re-enter if the rent had not been paid on the days of reservation? It seems to me, that he would have been so empowered; and that without any delay or condition other than the previous demand required by the common law: for all that he would be bound to prove, in order to justify and enforce his re-entry, would be, that there was a non-payment on demand of the rent reserved by the lease.

If this be so, it seems to me to prove that the necessity of waiting fifteen days, and the necessity

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It has been said, that the leasing power requires only “ a power of re-entry,” much stress having been laid on the indefinite effect of the article “ a; ” and it has been further said, that, though such power of re-entry is to be “for non-payment of the rent,” yet, that the words “ for non-payment” are not equivalent to “ on non-payment,” but only point at the purpose or object of the power of re-entry, namely, that of securing the payment of the rent.

It appears to my mind, however, that, although the article “ a ” be indefinite, yet it cannot, in just construction, extend an indefinite meaning to the subsequent words, if they sufficiently import (as I think I have shown they do) a distinct and definite meaning. In this sentence, the word “ a ” seems to me neither to add to nor to qualify the meaning; but, that the meaning would have been the same, if that word had been wholly, omitted, and the sentence had stood thus, “so as there be contained in every such lease power of re-entry for non-payment of the rent thereby to be reserved.” And, as to the observations made on the meaning of the words “for non-payment of the rent;” although it is true, that the word “ for ” does often import the purpose or object, (and so it might here, if the words had been “a power of re-entry for payment of the rent:”) yet the same word “for,” as often imports the cause or occasion of that which is predicated;

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If the words of this leasing power import, as I conceive they do, by themselves, a distinct and definite meaning, I think it follows, that the fact stated in the special verdict respecting the usual and accustomed form of leases of the estate mentioned in the marriage settlement can have no legal effect on the construction to be put on these words. Such evidence, I conceive, is never admissible in the construction of a written instrument, unless the words of the instrument itself import a reference to something extrinsic, or unless the words involve some latent ambiguity, that is, an ambiguity not appearing on perusal of the instrument itself, but which becomes apparent on applying its provisions to the subject matter. The words of this leasing power, in that part which respects the clause of re-entry, seem to me to involve no latent ambiguity, nor to import any reference to any thing extrinsic; although some former parts of the same leasing power do import such reference, namely when it is required, that the lands to be leased for lives should be such lands as were in lease for lives at the time of making the settlement, and that the rents to be reserved should be the ancient rents, or rents as great and beneficial.

I admit that a court is bound to look at every part of a written instrument, in order to ascertain the meaning of the parties in a particular part. But I think it by no means follows, because this settlement,

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Supposing, however, it were possible on this ground to get rid of the objection made against the lease of 1803, in respect of the allowance of fifteen days; another and still more decisive objection remains, namely, that this lease fetters and confines the power of re-entry to such cases only where there is a want of sufficient distress; a condition which appears to me, to be equally inconsistent with the power applicable to leases for rack-rent, and to that which is applicable to leases for lives.

The case of Coxe v. Day * , which I think was rightly decided, appears to me to be in point, and I cannot draw any distinction which is satisfactory to my own mind from the circumstance that the leasing power there allowed a period of twenty-one days for payment; whereas the leasing power now under consideration as to the leases for lives, expresses no such allowance. It is true, that in Coxe v. Day , the case of Hotley v. Scot †, does not appear to have been cited; and it seems that in the last-mentioned case a similar objection taken to a lease granted under a power was over-ruled by the Court

Footnote

* 13 East, 118.

† Lofft , 316. S. C. Mr. Butler's MS., see note ( a ), p. 331.

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It has been suggested, that the statute of 4 G. 2. c. 28, though professedly made for the benefit of landlords, does in effect take away their right of re-entry at common law, and confine them in all cases to the statutable remedy thereby given, which remedy can never be exercised without proof that no sufficient distress was to be found on the demised premises countervailing the arrears then due. And I think it must be admitted, that such a construction of the statute, if it be the true construction, furnishes a sufficient answer to the second objection made to the lease of 1803; for in that case the lease has only expressed that which, whether expressed in the lease or not, the statute law has provided.

But I cannot think that this is the true construction of the statute. The object of the statute, as appears to me, both from the recital and the enactments, was to relieve landlords from certain inconveniences to which they were subject by the law as it then stood, and to give them certain remedies to which they were not before entitled; but not to deprive them of any remedies or rights to which they were already entitled by law. It contains no negative or prohibitory words, which I think would obviously have been inserted if the intention had been to deny to the landlord the future exercise of any ancient right; and it would, as it strikes me, be

Footnote

* See the arguments and judgment, post . p. 332, et seq.

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Footnote

* 7 T. R. 117.

† 7 East, 363.

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It has been said, that if the lease of 1803 be invalidated the decision will shake many titles. I have no means of knowing whether this observation is well founded, or to what extent. If such should be the consequence I shall regret it; but I cannot feel that such an apprehension can afford a legitimate ground for deciding the present case, otherwise than as the words and legal effect of the instruments now under consideration seem to me to require. Upon the whole, therefore, I am bound, for the reasons before given, to answer the question in the affirmative.

Best , J.—The words of the power are, “and so as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved.” The terms in which it is expressed are general and indefinite. Instruments in such terms are not to be abstractedly and absolutely considered, but with reference to the nature of the subject to which they relate. They are in law taken to contain such qualifications as are manifestly just and reasonable, and such as according to practice, have before been introduced in similar cases, and which, not being expressly excluded, must be understood to be within the intent of the parties. This rule of construction is universal; it cannot be departed from without destroying the excellence of the law, which consists in its bearing a just relation to the state of things on which it is to operate. Thus, under contracts to sell goods, in which nothing is said as to the time of delivery, the vendor is not bound to deliver them the instant that the contract is made. Under a contract to perform

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Our books do not furnish many cases oh this subject. There are enough, however, to satisfy us that according to the practice that has long prevailed among conveyancers, the proviso for re-entry in this lease is a sufficient execution of the power. The existence of this practice, and its being considered reasonable, account for there being no more decisions of courts on the subject. From the few cases that are to be found, the balance of authority seems to me to incline much in favour of the validity of this lease. But the authority of the cases in favour of the lease is much strengthened by the practice of that branch of the Profession of the law who have been accustomed to prepare powers, and leases under powers.

The first case is that of Jones dem. Bromefield v.

(a) Sir John Cowper had been enabled

Footnote

( a ) Willes, 169.

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The next case is Hotley v. Scot * . The words

Michaelmas Term, 14th George. III. B. R.

Footnote

* This case is reported in Lofft 316, under the name of Hotley v. Scott .]

In a manuscript note taken by Mr. Butler (of which a copy is subjoined) it is given under the name of

Lord Tankerville v. Wingfield and Pritchard,

Upon ejectment; the case was as follows. Upon the marriage of Sir John Astley, his lady's estate was settled upon Sir John for life, with several remainders over, which never took effect; remainder to the lady's right heirs. A power of leasing was given to Sir John, such leases to be made for any number of

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of the power were, that if the rent should be behind or unpaid for twenty-one days the lessor should, have

Footnote

years, at the accustomed rent, to take effect immediately in possession, and not by way of future or reversionary interest; and, on every such lease there was to be inserted a clause of re-entry if the rent should be behind for twenty-one days; the rent to be made payable, and the re-entry to be incident to and go along with the reversion or remainder. In the same settlement there was also a power of revoking all the uses thereby declared, and appointing new.

Some time after the marriage, Sir John Astley and his lady revoked all the uses of the settlement that were subsequent to Sir John's life-estate, and the powers incident thereto, and declared new uses. There was also a fine levied to the same effect.

September 21, 1766, Sir John made two several leases of this date to the two defendants, Wingfield and Pritchard, for twenty-one years, conformable to the power he had by the said settlement, and the other deeds and the fine, except that previous to the entry distress was to be made, and it was nearly in the following words:

“That if the rent should be behind or unpaid by the space of twenty-one days, and no sufficient distress or distresses could be had, or if the lessee should assign over the leased premises, (except as therein is excepted) then it should be lawful to Sir John Astley, his heirs and assigns, to enter.”

Sir John Astley and his lady being both deceased, the estates are descended upon Lord Tankerville, the Plaintiff, &c.

Dunning, for the Plaintiff:—The Court always takes a difference between powers when exercised by a man upon his own estate, and the exercise of powers by a man upon another's estate, or which he holds in another's right. The first are always construed favourably to the persons making use of this power; the second are taken in a strict light: here it was certainly the second. It was a power to be exercised on the wife's estates, and, in some respect, in prejudice of his wife; and therefore to be taken strictly.

1st objection, that the settlement declares that the power of re-entry should be reserved and made incident to the inheritance of the estate; and by the lease it is reserved to Sir John Astley, his heirs and assigns. 2d objection, the settlement directs the re-entry so to be reserved as above, to be made immediately, if the rent should be behind by twenty-one days. By the lease it is to be preceded by demand and distress.

These are strong, plain, and conclusive objections.

Bearcroft , for the defendants.—The remainder-man, Lord

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Footnote

Tankerville, has, substantially, all the powers he ought to have, or can have. As to the first objection, the rent cannot be made payable but to those in remainder or reversion, to which it is inseparably incident. The heirs and assigns of Sir John Astley mean those who are heirs and assigns to the estate under the settlement by which Sir John claims the estate. See Cother v. Merrick * . Tenant in tail died seised, his son entered, and made a lease for twenty-one years, rendering rent during the term to the lessor, his heirs and assigns, and died.

It was unanimously adjudged to be a good lease, and within the 32 H. 8.; the opinion of the Court being, that the word heirs being a comprehensive word, it ought to be construed secundum subjectam materiem, and to have that construction which the nature of the deed requires. This is much the stronger in the present case, as Sir John Astley having joined with his wife in the deeds which raised the limitations, those who take by virtue of those limitations may, in some respect, be said to be the heirs and assigns of Sir John Astley. As to the second objection, that the re-entry, which is directed by the power in the settlement to be reserved immediately on the rent being behind twenty-one days after it is due, is by the lease to be preceded by distress and by demand. The words in the settlement are short and loose, and seem to be no more than a general direction that in every lease to be made under this power there should be a clause of re-entry. It is not a formal description what kind of re-entry should be reserved, or of any particular clause of re-entry; it is a direction that the power of re-entry, usually inserted in leases, should be inserted in the leases to be made under this power in the usual manner. This, I apprehend, is a sufficient answer to the objections raised against these leases; each is a verbal objection, and I have given each a verbal answer.

Mr. Dunning , in reply:—The distinction I set out with, and the consequence of that distinction, that these leases are to be considered in a strict light, is not denied. And besides this claim to the favour of the Court, Lord Tankerville has that of being the heir at law of the owner of the estate on which this power has been exercised. Lord Tankerville is neither the heir nor the assignee of Sir John Astley; he claims by a title paramount to Sir John's. The rent is directed by the settlement to be incident to the inheritance, that is to say, to be to the several

* Hard. 89.

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Footnote

limitees of the settlement when respectively in possession. The reservation is to the heirs and assigns of Sir John Astley. They are not limitees. This is therefore not a proper execution of the power. The case quoted, and the act of parliament * only show that if a tenant in tail make a lease according to the statute, and reserves rent to himself and his heirs the words “heirs and assigns” may be construed to be such heirs as may succeed by force of the entail. This construction can never in the present case take in Lord Tankerville, who cannot, in any sense or meaning whatever, be deemed the heir of Sir John Astley or his assign. It is sufficient to say, that in pleading he could never be described as such. As to the words being loose, and directing what should be done, and not describing how it is to be done, this seems a frivolous distinction. The settlement directs a clause of re-entry to be inserted in the lease; the lease says it shall not be lawful for Sir John Astley to enter as long as there is a sufficient distress or distresses to be taken. Till then it is postponed. This is contrary to the words of the settlement, and is not, certainly, a proper execution of the power.

Lord Mansfield .— The two objections to these leases are, 1st, That by the settlement the re-entry is to be made incident to the rent; but by the lease it is reserved to Sir John Astley, his heirs and assigns. And in the event it has not followed the rent, but gone to the heirs of the lessor, Sir John Astley, while Lord Tankerville is in the lawful possession and receipt of the rents. The second objection is that the clause of re-entry, which by the settlement ought to be immediate, is by the lease fettered, being on a previous demand † and previous distress. As to the first, by the nature of the power it must go with the reversion and inheritance. The person who is in the reversion and inheritance is he that is to enter on the forfeiture of the lease, and no one can enter but he to whom the rent is payable; for as Littleton says, no stranger can enter for forfeiture, for a stranger cannot be in by his former estate. If the rent had been reserved for the term, as in the case cited from Hardres, still it goes with the inheritance. Heirs and assigns can only mean those who have the reversion and inheritance; otherwise, as is said, 2 Saund. ‡ , they would be words of surplusage. The clause of re-entry must go with the inheritance the same as the rent, for it cannot be reserved to any body but to him who is seised of the inheritance. It was said, that it ought to have been worded, to the person next

* 32 Hen. 8.

† This does not appear by the clause as set forth, ante p. 332.

‡ 370.

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Footnote

in the reversion or remainder. The words heirs and assigns are general words, and are as good as and quite tantamount to particular words. As to the second, the clause of re-entry is short with words of course, and does not preclude the operation of law. A re-entry is to enforce the payment of rent; it is an immediate forfeiture of the estate by common law. By statute it cannot be without a want of distress. Therefore in both points we agree to support the leases. So the verdict must be entered for the Defendants.

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That a power expressed in general terms is well executed by a lease containing a proviso with legal qualifications, is further proved by Dormer's case * . “By special consent of the parties a re-entry may be for default of payment of rent without demand of it. And divers other cases were put where the consent of the parties shall alter the form and course of the law.” Although a clause of re-entry was absolute for non-payment of rent, yet the common law superadded the qualification to that clause, that the rent be demanded on the estate demised on the last hour of the day when it was payable; and according to Dormer's case, the demand of the rent can only be dispensed with by special consent, or, (as it is expressed in Newdigate's case † ,) “that it shall be lawful without further demand to re-enter.”

If at common law a landlord could not recover possession against a tenant holding under a lease,

Footnote

* 5 Co . 40. b .

† Dyer , 68.

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I do not mean to say that since the statute of George the 2d. a man may not proceed at common law. My argument is, that the law annexed the condition of demand of rent before the statute, and as the statute has now dispensed with a demand of the rent when there is not a sufficient distress, the law will annex the condition of there not being a sufficient distress to a power expressed in general terms; and therefore a clause of re-entry containing this condition is not inconsistent with such a power; otherwise the tenant would not have the protection which according to the spirit of the law he ought to have; for by an omission to pay the nominal rent on the day it became due, he might, without notice, and with abundance of property on the land to satisfy the rent, be dispossessed of an estate for which he had paid a large rent in advance under the name of a fine. This would be making that remedy which was intended only as a security for the rent a forfeit-trap.

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The decision in the court of King's Bench in Coxe v. Day is supposed to establish a contrary doctrine. Lord Ellenborough , during the argument of that case, seems to have intimated an opinion inconsistent with that which I have offered to your Lordships. But it is not dealing fairly with that great Judge to hold him to what he threw out whilst he was forming his opinion, particularly when it is contrary to what he afterwards decided, when the case now before your Lordships was in the King's Bench. The wisest of men could not escape the charge of inconsistency, if expressions, which are dropped while the mind is struggling with the different considerations presented by conflicting arguments, are to be recorded. I know not on what ground the Court agreed to the certificate which was sent to the Court of Chancery: but I cannot admit that this certificate is an express authority on the point now under consideration, when the case presents a ground, on which, with the opinion that I entertain on this case, I should have signed that certificate. The power in Coxe v. Day was in these words, “so as in every such lease there be contained a condition of re-entry for the non-payment of the rent reserved by the space of twenty-one days.” The words of the proviso were, “if the rent should be in arrear for twenty days— being lawfully demanded .” The words “being lawfully demanded” weakened the landlord's security for his rent by imposing on him the necessity of demanding it on the last hour of the day on which it became due, a thing always found to be attended with difficulty, and often impracticable, and from

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If authority be doubtful we must recur to principle. When property in lands is divided into estates for life and estates, in remainder, it becomes our object to secure to the possessor all the advantages which belong to his estate. The mode of doing this is by giving to the tenant for life a power to grant leases for certain terms not determinable with his life. Unless he has this power the estate will not be cultivated as it ought to be; much less will it be improved: and not only tenants for life but the public would suffer from the want of such powers. In the granting these powers care must be taken that in granting their leases tenants for life do not prejudice the estate of the remainder-man: possession of the lands must be secured to the tenant, and the rent to the landlord. Considering this as being the object of these powers, Judges in the construction of them will only have to consider—What did the maker of the power consider sufficient to attain this object? Can any one doubt that the maker of this power would have considered the clause of re-entry in this lease abundantly sufficient to secure the rent? But for the respect which I feel for those learned Judges from whom I differ on this subject, I should have said, without doubt or hesitation, “ a clause of re-entry” means in law what these words would in common conversation, viz. such a clause of re-entry as is generally inserted in leases. That this clause answers that description will not, I think, be disputed.

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That the principle on which I found my opinion is a sound legal principle is evident from the following cases: In Hotley v. Scot , Lord Mansfield says, “a re-entry is to enforce the payment of rent.” In Wadman v. Calcraft * , Sir William Grant says, “there is no doubt equity will relieve against the forfeiture; considering the purpose of the clause of re-entry to be only to secure the payment of rent; and that when the rent is paid the end is obtained.” In Opey v. Thomasius and others † , Twisden, J. says, “powers are to be expressed according to the intent of the parties.” In Goodtitle v. Funucan ‡ , Lord Mansfield says, “powers are now a common modification of property in land, and as such are to be carried into effect according to the intention of those who create them.”

I shall not advert to some facts which are found by this special verdict, and on which arguments might be offered in favour of this particular case. My opinion is formed on these general grounds: Where the power is expressed in general terms, as it is in this case, reasonable qualifications are not excluded, but may be introduced into the clause of re-entry; and the qualifications introduced into this clause have been acknowledged by the Legislature and the course of law to be reasonable. “ A clause of re-entry” means the usual clause of re-entry, and the clause of re-entry in this lease is such as is usually inserted in such leases.

Footnote

* 10. Ves.jun 69.

† Sir T. Raym. 134.

‡ Doug. 573.

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I believe that it has been so much the general practice of conveyancers to insert such clauses, that if your Lordships were to declare this lease invalid you would destroy the titles of a very large proportion of the landholders in the kingdom. Much of the property in the West is held by leases granted by tenants for life: I know that in other parts of England actions are already brought to turn tenants out of possession of those estates on the same objections as are made to this lease. Some of these actions have been brought to trial before me, and now await the judgment in this case.

I have heard the learned Judges say that they would never allow a practice to be set aside on which the titles to many estates depended, however much they might disapprove of such a practice. If you set aside this lease you will turn a large proportion of the tenantry of England out of estates for which they or their ancestors have paid large sums of money, and which have been continued in their families by a successive renewal of leases for as great a length of time as any of your Lordships families have held their estates. The personal property of tenants for life, the fund out of which provision is to be made for the younger branches of families, will be drained to make compensation to the leaseholder for the loss that he has sustained by being deprived of his lease; and where these funds fail the families of the lease-holders will be ruined.

I have only further to say, that I see no reason to hold the lease stated in the special verdict invalid.

Garrow , B. :—The settlement made upon the marriage of Lord Vernon with Lady Louisa Barbara

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The lease granted by Lord Vernon to the defendant and another, contains a clause for re-entry if the rent shall be in arrear for the term of fifteen days, and if there shall be no sufficient distress upon the premises to satisfy the rent; and the question is, whether this is a good execution of the power, or in other words, whether this is such a power of re-entry as was required by the creator of the settlement?

It is observable, that the creator of the power, or those who advised her, knew how to make distinctions as to powers of re-entry applicable to different estates; and in the case where the rent reserved is of the most valuable description, there the creator of the power only requires of those who shall come in succession into the possession of the estate, as tenants for life, that they shall, for the preservation of the estate, in the most beneficial form and extent, for those who shall be from time to time interested as reversioners, insert a provision, that if the valuable rent reserved on leases for years absolute shall not be paid for twenty-eight days, then there shall

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In the case of the render of 2 l . a year, and a couple of fat capons, or 18 d . at the option of the lessor, it is insisted that the power of re-entry should be altogether absolute and unconditional; and that at the first moment when the day has expired on which the money is demandable, the power of re-entry is to attach, and enable the reversioner at that moment to turn the person out, who upon a valuable lease for years determinable upon lives should have permitted the day to expire before he had paid his sum of 2 l . I admit that if the maker of the settlement had in express terms said, “the power shall be to re-enter the moment at which the rent is due, and not paid or tendered,” a court of law could not alter, but must execute such power so expressed. We must see whether the power has been complied with or not.

Now the terms of the condition in the settlement are, that there shall be contained in the leases a power of re-entry on non-payment of the rent. Is there not in the lease granted to the defendant a power of re-entry on non-payment of the rent? There is; but it has been urged with great force that it is not such a compliance with the power as the reversioner had a right to expect the lessor should have made; for he has clogged the clause of re-entry with a delay of fifteen days, and with the necessity of seeing that there is no sufficient distress upon the premises. The answer to this appears to me to be, that according to our experience such an event is so improbable, that it probably did not occur to

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Burrough J.: —After the fullest deliberation, I am of opinion that the demise of the 5th September 1803, is invalid; that it was valid only during the life of the lessor, and that his death determined the estate of the lessee.

The statute of the 4 Geo. 2, c. 28, was relied on in the Exchequer Chamber, and in the argument here, as bearing on the subject. In my view of this case it has no application to the subject before the House. That statute, as I conceive, applies only to leases which before the statute might and must have been avoided by entry; to cases where the cause of avoidance might have been waved. Such leases were valid till a strict legal entry was made, and before such entry they were capable of confirmation by suitable acts done by him in whom the right of re-entry was. But a lease by a tenant for life having a special power to demise, if not made conformable to the power, is the lease of a mere tenant for life, and has validity only during his life, and not a moment longer.

I cannot see that any well-grounded argument from a provision made by an act of parliament, in the case of demises of a description wholly different from the demise in question, can be urged in support of that demise. In forming our judgments on the

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The clause of re-entry in the demise ought, I contend, to have corresponded with the reddendum , which is to this effect, “yielding and paying the yearly rent of 2 l. at Michaelmas and Lady-day , by equal portions;” and not so corresponding I am of opinion the lease is invalid. First, because there can be no re-entry unless the rent is behind and unpaid for fifteen days from Michaelmas and Lady-day , which is an extension of the time beyond that in the reddendum . Secondly, because the re-entry for the non-payment of the rent cannot, by the express terms of the demise, be made if there is sufficient distress to be had on the premises. The general scope of the deed is too well known to require repetition. It has heretofore been considered

Footnote

( a ) Shep. Touch. c. 5, rule 4, fo. 87.

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The first part of the power is that which relates immediately to the demise in question; by this Mr. Vernon and his wife (who by the deed took successive estates for life) are enabled to grant leases for life, or years determinable on the death of a life or lives, of such lands as at the time of the deed were leased for life, or years determinable on the dropping of a life or lives; so as the ancient and accustomed yearly rents, dues, and services, or more or as great and beneficial rents, &c. be reserved or made payable, and so as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved. Now, what is the rent thereby to be reserved but the reddendum? —the power of re-entry is to be for the non-payment of

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It is not to be doubted that former leases were admissible in evidence for two purposes: first, to show what lands were, at the time of the demise, leased for life or years, as described in the deed; secondly, to show what the ancient and accustomed rents were; for former leases are for these purposes necessarily referred to. But, it appears to me to be free from doubt that, as to the power of re-entry prescribed by the deed, there is no reference to former leases or to prior circumstances, but to the reddendum only, ascertaining not only the rent itself, but also the mode and time of payment. This power of re-entry prescribed by the deed is framed in plain terms; it contains a clear proposition in itself, and therefore I contend, that the maxim that quoties in verbis nulla est ambiguitas , ibi nulla expositio contra verba fienda est , is precisely applicable to the point. Thus to decide is to avoid the vicious mode of interpretation which is reprobated by a maxim to be found in Lord Bacon's Tracts (b) . Divinatio , non interpretatio est quæ omninò recedit a literâ. non interpretatio est quæ omninò recedit a literâ. If you stir beyond what the deed expressly prescribes then commences the divinatio , and the interpretatio is at an end.

Next follows in the deed what, I say, is more properly a second part of the same power than a distinct and separate power. The general enabling words being at the beginning of the whole; this part

Footnote

( b ) 67.

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The third part, of the power is introduced in the same manner as the second part: this is the part which empowers the leasing mines then open, or lands wherein persons may be willing to open mines. Annexed to this there are several restrictions running in this language: “So as in every such lease there be reserved or made payable such parts of the lead, copper ore, coal, and other produce to be gotten from the said mines, or such other yearly rent or

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In the second and third parts the word “reasonably” is introduced; but it is wholly omitted in the first part. Is a court of law authorized to transplant the word “reasonable” to the first part, when the parties have introduced it in the second and third parts, and omitted it in the first part? This cannot be done if it varies the construction of the words as the parties have penned them. We are required to state our respective opinions, whether, having regard to the due intent and meaning of the indenture of July 1757, according to the legal construction of the several parts of it, and having due regard to the legal effect of the facts and circumstances found by the verdict, the demise is for any and what reasons invalid? I feel that if I depart from the plain meaning of plain words, made (if it were possible) more

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For the reasons I have stated, I am of opinion, first, that the former leases were not admissible in evidence to show that they contain clauses similar to those to be found in the demise in question, respecting the extension of the time of payment, and respecting the distress. Secondly, I am of opinion, for the reasons I have given, that the demise in question is invalid. The House has been told at the bar, that a decision, that this demise is invalid, will have the effect of destroying other leases made under similar powers. I cannot take notice of such a statement, first, because it is an assertion of a fact, of which, as a Judge, in a court of law, I can have no knowledge; secondly, if it were fit that it should weigh with us, ought we not to see the settlements and the leases, in order to know that the antecedentia et consequentia are the same as in this case. A variation in the words and context matter might vary the grounds of our judgments. Thirdly, if there were other leases made under circumstances precisely similar it would not vary the opinion

Page: 352 ↓

As to the cases of Hotley v. Scot , and Coxe v. Day , from the report of the first case I cannot discover what was decided, it is to me unintelligible; but supposing it to be applicable, we have the later case of Coxe v. Day . The decision of the four learned men on the second question has great weight with me, and I cannot see why it ought not to guide our judgment on the present occasion. It is well known that the late learned Lord Chief Justice of the Common Pleas, Sir Vicary Gibbs, thought that decision right, and was of opinion that the present lease was invalid: he was in office when the present case found its way into the Exchequer Chamber.

Holroyd J.: —I think that, having due regard to the true intent and meaning of the indenture of the 2d day of July, 1757, according to the legal construction of the several parts of that indenture, as

Page: 353 ↓

By the death of Lord Vernon, the lessor, who had an estate in him for life only, that demise became invalid, unless it were made in conformity to one of the powers of leasing contained in the above-mentioned indenture of the 2d of July, 1757. That indenture contains three powers of leasing; one, for a life or lives, or for a term determinable on a life or lives; another, for years not exceeding twenty-one; and the third, for working mines or ore for years not exceeding thirty-one. Each of these powers is clogged with qualifications of two descriptions; one class of which is comparative, or with reference either to the existing or previous state of things, or to usage or custom, or to what can reasonably be had or obtained; the other class is direct and absolute, without any reference or regard either to the existing or previous state of things, or to usage or custom, or to what can be reasonably had or obtained, or to any matter whatever; these last qualifications are superadded by the creatrix of the power, to be complied with at all events, as I think, without reference or regard to any matter, and not to be varied, changed, or altered by, or at all to depend upon, any usage, custom, or state of things, or any matter whatever.

The first of the above powers of leasing is that upon which the present question depends, the power of leasing for a life or lives, or for years determinable

Page: 354 ↓

Page: 355 ↓

Footnote

( d ) 7 East, 237.

( e ) 9 Ves. jun. 329.

Page: 356 ↓

The present question arises in a case where the exercise of the power is by a person (namely, Lord Vernon) who, previous to the creation of the power, was a stranger to the estate; and in a case, where this qualification of the power given to him by his wife must be taken to have been inserted as well for the benefit of herself, as of the several other persons in remainder, in derogation of whose rights his exercise of the power would operate so long as the lease should continue valid after the extinction of his life-estate. It would operate in derogation of her and their rights, by depriving them, successively, of the actual occupation and enjoyment of the demised premises themselves, which they would otherwise be entitled to have, and giving them, successively, in lieu thereof, a rent or rents such as the power required, however inadequate the same might be.

The power given to the tenant for life to lease for a term that may last beyond his own life, is, agreeable to what is said by Lord Ellenborough in Coxe v. Day (f) , for the benefit of the tenant for life; the qualifications only, as he there also says, are for the benefit of those in remainder: and, in this case, those in remainder, who are to be protected by these qualifications (except the creatrix of the power herself), are not parties or privies, but are strangers to the deed; and therefore as to them,

Footnote

( f ) 13 East, 127.

Page: 357 ↓

The words applying to the power of re-entry required to be contained in the lease are “a power of re-entry for non-payment of the rent thereby

Page: 358 ↓

Page: 359 ↓

But it has been argued that this qualification in requiring a power of re-entry is silent as to the time when it should be carried into effect; and therefore that it may be considered to require only that there should be some reasonable power of re-entry for non-payment of the rent, and that the power of re-entry reserved upon the lease in question is a reasonable power of re-entry for non-payment of the rent, and therefore as much as the creatrix of the power has required. To this, besides observing that the word “reasonable” is not here used in the deed, though it is used in two other instances in giving those powers where a discretion was intended to be given, I answer, that this qualification in my opinion is not to be so considered, if upon the due and proper construction of this leasing power, this leasing power, if fully executed, would have authorized a re-entry for non-payment of rent in any case in which such entry would not be authorized for non-payment of rent upon the lease in question. And I say that there are cases in which, if the power of leasing had been fully executed, a re-entry might lawfully be made for the non-payment of rent, in which it could not lawfully be made under this lease.

To try whether this be so or not, suppose the right of re-entry reserved by this lease, instead of its being in its present form, had used the very words of qualification used in the deed creating the power of leasing. Suppose the lease had been, “Provided that it shall be lawful for the lessors,&c.

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Page: 361 ↓

Page: 362 ↓

But, in truth, the reserved right of re-entry which

Page: 363 ↓

It is not, therefore, in reality a right of re-entry for the same thing as the creatrix of the leasing power required it should be for (and which right, as I have said before, must I think be co-extensive with the existence of the thing, or event, or default for which it was given); but it is a right of re-entry for a combination of things, all of which must exist before the right of re-entry can be exercised. And how reasonable soever it may be thought that this qualification of this leasing power might have been given by its creatrix for the securing of the rent instead of the qualification she has actually given to it, it cannot I think be substituted for the qualification which she has actually given and required.

Page: 364 ↓

But it has been argued that all this is immaterial, because of the general clause of re-entry that follows for default of the performance of any of the reservations, covenants, &c. But it is so completely settled, both on the maxims and authorities of law, that the general clause of re-entry can extend only to cases not before specially provided for, more especially when it would otherwise contradict and defeat the prior express provision, that I shall say no more upon this point.

But then it has further been objected that this leasing power being given and executed since the statute 4 Geo. II., * the insertion of the want of a sufficient distress on the demised premises in the leases, in order to give the right of re-entry, has become immaterial; because it has been urged, that since that statute no right of re-entry for non-payment of rent can be rendered effectual so as to regain the actual possession, unless where there is no sufficient distress to be found on the demised premises countervailing the arrears of rent due. But that statute does not appear to make any difference in the present case. That statute applies only to cases where the landlord has omitted to make such a demand of the rent as would entitle him to the forfeiture, and substitutes for his relief other things to be done in lieu, and then gives him the benefit of a forfeiture (to which he would not be otherwise entitled), and gives him that benefit only in certain cases, amongst which is the want of a sufficient distress, and on certain terms. But notwithstanding

Footnote

* c. 28, s . 2.

Page: 365 ↓

But it has been further urged, that not only the above statute of the 4th Geo. II., but also the cases both at law and in equity show that the object of a power of re-entry is only to secure the payment of the rent. It was then contended, that this payment of the rent is as effectually and as beneficially secured by the power of re-entry actually reserved in the present case, as if that power had been reserved in the words used in the leasing power, inasmuch as it is said that it reserves the right of re-entry in all cases where the landlord cannot himself by a distress obtain the payment of the rent. This, it was argued, appears by the necessity there is (even after entry) of obtaining judgment and execution in an action of ejectment before possession can be obtained; and by the relief which the courts both of law and equity, but more particularly the latter, give, independently, of the provisions of that statute, in cases of forfeiture for non-payment of rent. But let us see how the case as to this point stands: If the right of re-entry reserved had been merely for non-payment of the rent, in the terms of the right of re-entry required by the leasing power, it is clear, I take it, that on a due demand of the rent being made (and by

Page: 366 ↓

Page: 367 ↓

Page: 368 ↓

I have considered the question as above, independently of the disputed authorities of Coxe v. Day * , and Doe dem. Vaughan v. Meyler , † both which cases I think were rightly decided, notwithstanding the prior case of Hotley v. Scot . I have considered the question, too, as if in the lease the rent reserved had been a money-rent only, because it has been so treated in the arguments here, and in the courts below. But it is to be observed that this is the case, not of a lease for a money-rent only, but also for a rent of another nature, although certainly a very small one, namely, the additional rent of a couple of fat capons, or money, at the election, not of the tenant, but of the lessor or remainder-man, who would therefore be entitled, if he pleased, to have that rent in kind instead of money. It has been considered on all sides as the case of a lease for a money-rent only. I presume on this ground that the special right of re-entry depending on the want of a sufficient distress does not apply to this additional rent or reservation, but to the money-rent only, and that the right of re-entry applicable to this additional rent is the general right of re-entry subsequently given by the lease, in case of default in payment or performance of any of the reservations, covenants,

Footnote

* 13 East, 118.

† 2 M. & S. 276.

Page: 369 ↓

Footnote

* C. 5.

Page: 370 ↓

Park , J.—The objections to this lease are two: viz. that it does not pursue the power, inasmuch as a clause is required to be in every lease in these words:

“So as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved,” and nothing more: whereas it is said this lease contains a power of rentry, not generally , but clogged with two conditions,—“Provided the rent, &c. shall be behind and unpaid, &c. for fifteen days , and no sufficient distress can or may be had or taken upon the premises.”

And these two objections fall under very different considerations; but it must be admitted that if either of them prevail the lease is invalid. As to the general rules which govern the courts in the construction of leasing powers they are all now well understood, and have been so fully explained and commented upon by some of my learned brothers who have preceded me, that it would be a silly parade of learning, and a useless waste of the time of the House to enter upon them; it being sufficient to state that the intention of the parties, which is to be collected from the instrument, is to be the governing principle in the construction.

The words of the power having been read to your Lordships, “So as there be contained a power of re-entry for non-payment of the rent thereby to be reserved,” it has been asked, “if a plain man were asked how he would execute such a power, what would he say?” I answer distinctly that he would say, “insert a clause in the very words of the power, that the lessor shall have a power to re-enter for non-payment of the rent thereby reserved.” I answer

Page: 371 ↓

It seems to me that to contend for what is insisted on by the Plaintiff in error is to say, that “absolute” and “conditional” mean the same thing; or, that a power clogged with two conditions is the same thing as an unclogged and unconditional power. When this case was before the Exchequer Chamber I stated, that if the only objection to this lease were the time given, before the lapse of which he could not re-enter for non-payment of the rent, as then advised, I should think the objection fatal. I have heard nothing since to remove my doubt. It is said indeed that the indefinite article a being used, namely, a power, any power that is reasonable may be inserted. But what right have we to do this for the grantor of the power? Who has a right to insert this word? Who, if inserted, is to construe it? The court or the jury? If fifteen days be reasonable, why not twenty, twenty-five, and thirty? That this was never contemplated I think quite clear; for whenever time is meant to be given it is expressed, and therefore she must be presumed to

Page: 372 ↓

Footnote

* Sugden on Powers.

Page: 373 ↓

But the second objection seems to me to be impossible to be got over. I have thought much about it, both before I gave my judgment in the Exchequer Chamber, and since. I have turned it in every point of view; I have heard all that learning and ability at the bar could suggest; I have of course been present at all the conferences with my learned brethren; I have been most desirous to be convinced if my opinion be erroneous; but after all I cannot raise in my mind a probable doubt; and though if the decision of your Lordships should be ultimately in favour of the lease it will be my duty to conform to that opinion, I am at present bound to state my entire concurrence in this point with my learned brothers, Richardson, Burrough, and Holroyd, who have preceded me. Their luminous exposition of the argument, and my own judgment in the Exchequer Chamber, which is very accurately reported, both by Messrs. Broderip and Bingham, and by Mr. Moore, and which is in the possession of some of your Lordships, render it unnecessary for me to do more on this head than to make an observation or two on the cases that have been quoted.

The main reliance on the other side is on the case of Hotley v. Scot , Lofft, 316. Of that reporter

Page: 374 ↓

Footnote

* Henry Cowper, Esq.

Page: 375 ↓

Footnote

* 13 East, 118.

Page: 376 ↓

But the case of Coxe v. Day is not a solitary case, for the question again, in about three years after, came under the consideration of three of the same Judges who decided Coxe v. Day , namely, Lord Ellenborough, Judges Le Blanc and Bayley, with the addition of another learned person now no more (Mr. Justice Dampier), and who could not

Footnote

* Vide ante, vol. 1, 195.

† Vide ante, Rowe v. Young , 273.

Page: 377 ↓

The case of Rees on the demise of Powell v. King † , I formerly thought, and still think, sets this point at rest, by showing that such a clause as this throws a burden upon the right of re-entry which the maker of the power never contemplated. That case has been so often mentioned that it is enough to say of it that it has decided, that before a plaintiff in ejectment can recover upon a clause of re-entry in a lease, in case there be no sufficient distress on the premises, he must show that every part of the premises has been searched, else he cannot say there was no sufficient distress. The Judge who first

Footnote

* 2 M. & S. 276.

† Forrest, 19.

Page: 378 ↓

Of one other point I must take notice, namely, that as this lease contains a general clause of re-entry it must necessarily control the special clause. To that position, I, for one, at present, cannot agree; for I find the contrary doctrine maintained, from Altham's case * down to the present day. In Altham's case we find this position or rather this maxim adopted. In the first part of the argument, putting every point that can possibly occur, his Lordship says, “ Quando carta continet generalem clausulam, posteaque descendit ad verba specialia, quæ clausulæ generali sunt consentanea, interpretanda est carta secundùm verba specialia Quando carta continet generalem clausulam, posteaque descendit ad verba specialia, quæ clausulæ generali sunt consentanea, interpretanda est carta secundùm verba specialia .” But he goes on to add, there is another rule or principle of law, viz. “ generalis clausula non porrigitur ad ea, quæ antea specialitèr sunt comprehensa generalis clausula non porrigitur ad ea, quæ antea specialitèr sunt comprehensa .”

Footnote

* 8 Co. 154, b.

Page: 379 ↓

Footnote

* Ch. 5, p. 88, fo. 7.

† Hardr. 89.

‡ Hardr. 94.

§ 4 Mod. 69.

Page: 380 ↓

The point upon the statute of 4 Geo. 2, has been so luminously explained by my learned brother Holroyd, that I shall not trouble your Lordships on that point, except to say I entirely concur with him.

The next point is, whether the other leases should be admitted as evidence ? I am willing to admit that if this deed upon the clause in question contains any latent ambiguity raised by extrinsic evidence, parol evidence or extrinsic evidence may be admitted to explain it, or to render it unambiguous. But I have never heard the general rule contradicted, that parol or extrinsic evidence cannot be admitted to contradict, vary, or add to the terms of a deed. It would be of most dangerous consequence to admit such testimony; for then, parties dealing in matters on writing made upon advice and consideration would be subjected either to the uncertain testimony of vague and precarious memory, or, as in the case at bar, to matter, of which at the time of contracting they might have no knowledge, and never intended to be under its control. The written instrument, therefore, except in cases of fraud, or other excepted cases, of which I insist this is not one, must be considered as speaking the sense of the parties to that deed or instrument. Upon this ground it was, I conceive, that the case of Cooke v.Booth * met with such a decided opinion against it in Baynham v. Guy's Hospital † , by Lord Alvaney when Master of the Rolls, who not only states his own opinion, but that of Mr. Justice Wilson, who had argued the case of Cooke v. Booth, (who, Lord

Footnote

* Cowp. 819.

† 3 Ves. jun. 298.

Page: 381 ↓

Footnote

* 2 Bro. C. C. 636.

† 2 N. R.449. See the original case and pleadings, 7 East, 237.

Page: 382 ↓

But, my Lords, in my opinion no cases are wanting to prove that no evidence can be admitted to explain a deed which is plain and perspicuous in its terms, containing no ambiguity, much less to add clogs and conditions to it. I am asked then, is this a deed of that description ? I answer, that in my opinion it is. I see no ambiguity; it is precise and definite in the powers granted; every person of plain and common understanding, much more every person with a legal mind, can give it a clear and satisfactory solution. But I am told the case of Fonnereau v. Poyntz † , before Lord Chancellor Thurlow, is against my opinion. Upon the best attention I can pay that case I do not think so. The case was a bequest of the sum of 500 l . stock in long annuities, and similar bequests of smaller sums in the same stock. The question was, whether this was a bequest of 500 l . a year long annuities, or only 500 l . in the long annuities. This case was very powerfully argued by one of your Lordships; I own I should have thought there was no difficulty in the construction; and Lord Thurlow seemed at first to be of that opinion, but afterwards admitted evidence

Footnote

* Doe, dem. Allen & others, v. Calvert , 2 East, 376.

† 1 Bro. C. C. 472.

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The decision I am humbly recommending steers clear of all vagueness and uncertainty; leaving nothing to the variety of conflicting opinions. For who is to decide what is reasonable? If the Judges, as I should be inclined to think,—(but worse, if the jury) are,—what can lead to such contrariety of decision? We all know, in every transaction of human life, what is held reasonable or unreasonable depends upon the reasoning and feeling of every individual man who has to consider the question.

I heard it said this will unsettle many leases. I lament that it is so. The Legislature may interpose; but if my mode of construing powers had been always adhered to no such evil could have ensued. The hardship of the individual case is represented; and if there be hardship, I also, as an

Page: 385 ↓

Bayley , J.—I am of opinion that the lease in this case is conformable to the leasing power, and that it is valid. Nor do I think that that opinion will trench on the case of Coxe v. Day . The settlement in this case requires “a power of re-entry for non-payment of the rent;” and the first question I propose to consider is, whether this lease does or does not contain “a power of re-entry for non-payment of the rent?” It provides, that if the rent be behind for the space of fifteen days, and no sufficient distress can be had upon the premises, the person entitled to the freehold and inheritance may re-enter. Is this then, or is it not, “a power to re-enter for non-payment of the rent?” Does it give any power to the landlord? Undoubtedly.—To do what? To re-enter.—For what cause? For non-payment of rent. It is then a power of re-entry for non-payment

Page: 386 ↓

Footnote

* 20 H. 6. 30, 31. 6 H. 7. 3. Brooke, entre congeable, pl. 90.

† 110, pl. 130.

Page: 387 ↓

Footnote

* Co. Litt. 203. a.

Page: 388 ↓

Page: 389 ↓

But I apprehend that in judging of the true intent and meaning of the indenture of July 1757, in this respect, we are at liberty to look at the state of the property at the time that indenture was made, and see to what restrictions it was then subject, and what fights the settler then had. The settler has used the indefinite words, “a power of re-entry.” By showing, as I do, that there are many such powers, I show that there is an ambiguity in those

Footnote

* 110.

Page: 390 ↓

Footnote

* Cowp. 819.

† 2 East, 376.

Page: 391 ↓

Footnote

* 1 Shepp. Touch. 88.

† Per M. R. 1797. 3 Ves. 310.

‡ 1 P. Wms. 421.

§ 1 Bro. C. C. 472.

Page: 392 ↓

Page: 393 ↓

Footnote

* 3 Ves. 320.

Page: 394 ↓

Wood , B.:—I am of opinion that the power contained in the marriage settlement is well executed. That power applies to lands “leased for lives, or for years determinable on lives, to any person or persons in possession or reversion;” and one of the conditions of such letting is in these words, “and so as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved.” There is another power

Page: 395 ↓

The lease in question is under the first power, which provides re-entry on non-payment of the rent generally, without prescribing any time of re-entry at all, or any special terms whatsoever. The proviso in the lease in question is, if the yearly rent of 2 l . or any of the duties, services, reservations, and payments thereby reserved shall be behind, unpaid, or undone in part or in all, by the space of fifteen days after any of the times of payment or performance, and no sufficient distress or distresses can be had or taken whereby the same and all arrearages may be raised. It is contended on the part of the Defendant in error that this proviso of re-entry in the lease is not such a one as is required by the settlement, inasmuch as it has limited a time for re-entry, which the power has not; and inasmuch as it is clogged with a condition, that there be no sufficient distress, which the settlement does not mention.

The clause requires no more than a power of re-entry for non-payment of rent, giving it no qualification or modification at all. There is a clause of re-entry, and that is a literal compliance. But though the power is general, I admit it must be executed,

Page: 396 ↓

Footnote

* Hardr. 89.

Page: 397 ↓

The last objection, which was mostly if not entirely relied on, was the clogging the right of re-entry with the condition of their being no sufficient distress. Is that reasonable with reference to the law as it stood when the lease was made? I conceive it is. The 2d July 1757, was the date of the deed of settlement which gives the power of leasing, and which was subsequent to the statute of the 4th Geo. II, c. 28, which was in the year 1731, which regulates the powers of re-entry for the non-payment of rent. Before the making of this statute, the carrying into execution a power of re-entry was attended with great difficulty and nicety. There must have

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In this present case, which was only a few years afterwards, the same court thought this power well executed. They must have thought their former decision was wrong, or that this case was distinguishable from it: Lord Ellenborough and Mr. Justice Bayley sat upon both those cases. But whatever may be the construction upon the, statute

Footnote

* 13 East, 118.

Page: 401 ↓

Graham , B.—In my opinion the demise of the 5th September 1803 is valid. All the directions are strictly observed in the lease, yet how the penner of the lease was enabled to be correct in those reservations but by the aid of the then subsisting or former leases, I cannot readily conceive. But it seems he is mistaken, though with the same guides, in the clause of re-entry for non-payment of rent; for it is said he has unwarrantably and without authority or power, given 15 days respite, and annexed a qualification that no sufficient distress can or may be had on the premises, whereby the arrearages of this 1 l. half-yearly rent may be fully raised, levied, and paid.

And the question is, whether this lease, with a clause of re-entry so qualified, is a proper and valid execution of the power created by the settlement? Whether it be so or not must depend on these considerations, viz. whether it is substantially conformable to the intention of the creator of the power, suitable and adequate to its object and purpose, and not injurious or inconvenient to the person next in remainder or succession.

I will not trouble your Lordships with cases to show that powers of this kind should receive a liberal

Page: 402 ↓

What then did the maker of this power mean by the words, “so as there be contained in every such lease a power of re-entry for non-payment of the rent?” The maker does not say what power—he prescribes no form of the clause. What is it but a general direction to insert a clause of re-entry because of non-payment of rent, that is, where the rent is not duly paid? This general direction was never intended to be inserted verbally in the future lease; it left the verbal exposition and specific form of the clause to further care and provision; no conveyancer would think of transcribing the terms of this general direction. Besides, “ a power of re-entry” for non-payment

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I have said that the clauses for re-entry in the former and subsisting leases were a proper guide to the exercise of discretion in preparing those clauses; but I say it subject to the doubt which some may entertain; and if I am not allowed to use that evidence I do not feel that the argument in support of my view of this question is much impaired; though with that evidence the point is decided. But I take this to be a case very different from Cooke v. Booth , which I know has been over-ruled by many subsequent approved decisions. In that case the Court of King's Bench were called upon to put a construction on a written and explicit covenant of no ambiguity, or if any, of a patent ambiguity; it was a covenant to grant a new lease on the dropping of one of three lives, for the lives of the two remaining, and the third life under the same rents and covenants. But this is not a question on the language of a written instrument; it is impossible to contend that it should be literally transcribed into the clause; it must have some modification: and if you admit any you admit the exercise of common sense and the consideration of the fitness and propriety of the power; and to my apprehension you admit inquiry as to what clause of re-entry the settler meant. She has bid you look to former leases as to the lands so usually letten, the usual rents, heriots, services, and covenants for their recovery, and for doing suit at the mill; has she not therefore bid you look for what was the usual

Page: 406 ↓

As to the question arising on the assumption that the giver of the power meant that the clause of re-entry should be simple and absolute, it is said, with great impression on many, that there is a manifest distinction between a simple power of re-entry, and a power clogged, as it is said, with a condition or troublesome qualification; but the question is not on a difference in terms, but on a difference in substance and effect; a difference which may sensibly injure the remainder-man, not on a difference which leaves him effectually in the same situation, or, as I think, in a situation which may be proved to be better. To judge of this, let me suppose that a clause, such as has been suggested, had been inserted in the present lease; how would it have availed the remainderman? He must have begun by a demand of his rent of 1 l . at proper time and place. It is hardly necessary to quote Lord Coke's Commentary on Littleton * to show with what punctilious and expensive accuracy

Footnote

* 153 a, 154 a, 201 & 202.

Page: 407 ↓

I have said, that the giver of this power meant by the words used a power fit, and suited, and adequate to the occasion, that is, to its proper and allowable use, the security and enforcement

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With respect to the cases cited I shall confine

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The decision of the Court of King's Bench in the present case may be thought to throw some doubt on Coxe v. Day ; and, all the cases considered, the present is open to your Lordships decision. I humbly offer my opinion, that the lease in question is not, for any reason that I can suggest, an invalid execution of the power.

Richards , C. B. The question arises upon a deed of settlement made on the marriage of Lady Vernon, by which her Ladyship was made tenant for life, with remainder to Lord Vernon, her intended husband, for life, with powers of leasing, which were given to each of them as they should happen to be in possession of the premises. One power is to lease the mineral lands, in which there is no clause of re-entry at all; the power mentioned secondly in the settlement is to grant leases at a rack-rent, with a proviso for re-entry in case the rent be in arrear for twenty-eight days: in that case there is a power of re-entry required in the lease to be granted for non-payment of the rent; but there is an extension of the time from the days fixed for the payment of the rent to twenty-eight days. The clause is to be

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It seems to me impossible to ascertain what lands were then leased for life or lives without looking into the leases and other instruments which were produced at the trial; and the production of the same instruments is equally necessary to show what the ancient and accustomed yearly rents were. In this view of the case, as it seems to me to be impossible to consider the effect of these powers without looking to the instruments to which I refer, it follows, that in my judgment they were properly admitted in evidence at the trial. Then come the words of the clause in question, viz. “and so as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved.” A more general power can never be expressed: It is not clogged with any qualification; it requires only a clause of re-entry “for non-payment of the rent,” not on non-payment of the rent. There is no allusion to an immediate entry for or on non-payment of

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Now in this last case, which is the case before your Lordships, the lessee pays the fine contracted for to the tenant for life, the lessor, at once, in the very commencement of the term. The tenant for life receives at that time the whole value of the lease and of the premises demised, except the nominal rent of 2 l . per annum, and the small duties; and it can hardly be supposed that it could be the intention of the parties to the settlement, in a case where the lessee paid all the value at the first instant, that he should be in a worse condition than the lessee under the other power, paying rack-rent, who was not to pay any rent until he had enjoyed the possession of the premises, and to whom an extension of twenty-eight days beyond the time fixed for the payment of his rent was given.

Now Lord Vernon, intending to execute this power, executed the lease in question, containing a power of re-entry for non-payment of rent, with this proviso, “that if it shall happen at any time during the said estate hereby granted, that the said yearly rent or sum of 2 l . and every or any of the duties, services, reservations and payments hereby reserved, or any part thereof shall be behind; unpaid or undone, in part or in all, by the space of fifteen days next over or after any or either of the days or times whereat or whereupon the same ought to be paid, done or performed as aforesaid, and no sufficient distress or distresses can or may be had and taken upon the said premises, whereby the same and all

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There are two objections stated; the first is, that in the lease the time for the payment of the rent is extended to fifteen days, whereas it is insisted that the re-entry ought to have been immediate, and at the time when the rent was reserved to be payable. The second objection is that the re-entry is given in reference to a want of a sufficient distress.

It is clearly established that the construction of powers is to be governed by the intention of the parties who make them, that intention to be ascertained by a fair interpretation of the language in which the power is worded; in this case, Lord and Lady Vernon, uniting in marriage, may be considered under their settlement as owners of the estates, though before marriage it was her Ladyship's property. By this settlement they propose to grant leases to all who choose to take them upon the terms mentioned in the powers; one of which, relating to the property under consideration, is, that the lease should contain a condition of re-entry for non-payment of rent. It has been considered, and has been ruled in many cases, that in the construction of powers the courts ought to be as liberal as may be; and more liberal in favour of a lessee where the power is executed by the person out of whose

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I understand from extensive information, and my own experience, such as it is, justifies me in believing that the practice of all conveyancers has been consistent with what I have stated now, so far as the extension of the time is concerned; and if it be so it certainly must be considered as founded upon the intention which is ascribed to the party making the power, for it is obvious that if the power, as it is contended, required a right of re-entry at the moment the rent was due, the enlargement of the time would be in some degree unjust to the reversioner, as it would cause a postponement of the day of payment: but the practice has been, I believe, so general that it must be strong evidence of the intention ascribed; and so inveterate, that it would be very highly dangerous to affect it: and I have always understood that the Judges have always considered an universal or very general practice amongst conveyancers a sufficient ground for their decisions, though they did not entirely approve of the principles on which the practice had proceeded.

On this point, viz . the extension of the time, I have been always inclined to support the lease, and I am of opinion that the objection ought not to prevail.

With respect to the other objection to the lease, viz . that a re-entry cannot be had unless no sufficient distress can be had upon the premises, I do not find, from the best inquiry that I have made, that any very general practice or understanding upon the subject, namely, with respect to the execution of powers, has prevailed among conveyancers; and I have not been able to find that any decision has

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The objection to the part of the lease with which I am now troubling your Lordships is certainly greatly supported by the inconveniences imposed on the reversioner; but if I am right in deeming the lease good, notwithstanding the extension of the time for the payment of the rent, it must be because it is agreeable to the true intent and meaning of the power, though there are no words that expressly allow that extension. If so, it may be right to presume that the words used in the power meant more than is expressed, and that any right of re-entry on reasonable and usual terms, so far as the extension of the time is concerned, is good. If so, what prevents us from inquiring whether the other terms are reasonable and usual, I mean with respect to the distress; and from holding that if they are usual and reasonable they are within the power? It cannot, I think, be said, that the circumstance of the want of a sufficient distress can be considered as imposing any condition either not reasonable or not usual. Every one's experience shows that in leases in general it is not only usual but most general, and

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It is observable, however, that the power now under consideration is the first in the settlement; it requires in very general terms that in every lease pursuant to it there should be a power of re-entry for non-payment of rent, or because the rent is not paid; it does not specify any qualification or condition, and only requires that clause of re-entry without more, excepting for non-performance of the covenants. Now it is clear that the clause does contain a power of re-entry for the non-payment of rent, than which nothing in the world can be more general and unrestricted; and under words so general I humbly conceive that there is in the lease a clause of re-entry on reasonable and usual terms. In a condition of re-entry all that the law requires is to secure the payment of the rent, and re-entry is, as it were, penal; and therefore the clause in this lease under the general words of the power is nothing more than what the law would enforce and require, and therefore the clause is exactly agreeable to the power, as it is reasonable and usual.

That the real object of the power of re-entry is to secure the payment of rent is quite obvious; for a Court of Equity acting on reasonable grounds has always prevented a re-entry from taking place if the rent is paid, though the time of re-entry has arrived; because it was considered merely as a security for the payment of the rent. The maker of it cannot be supposed in directing the clause of re-entry to

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I beg here to request your Lordships attention to the observations which I have made on the proceedings of Courts of Equity, which apply to this head as well as to the former; for I conceive that those courts would direct a clause similar to that which is now in question.

Now suppose this was a lease by Lady Vernon, it seems to me that according to the argument itself used at the bar, there would be very great difficulty in maintaining that the lease was not according to the power, as the estate moved from her ladyship, and therefore the construction of the power would be more favourable to the lessee; and if the words were the same in the lease she might have made as they are in this lease which Lord Vernon has made, the lease would I think be considered as valid; and there can be no different construction of the same words, for the construction in both cases must be on the intention ascribed to the parties who used them in the settlement.

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The lessees are purchasers for valuable consideration under the settlement, and upon the faith of the power in the settlement, they have paid the value of the estate for the term demised to them, except the small rent and duties. I am persuaded that every court must feel very desirous of supporting the lease executed. The clause objected to is reasonable, and perfectly calculated to secure the rent. It is inserted in all general leases—it is sanctioned by Parliament—it is, as I conceive, agreeable to the proceedings in Courts of Equity, which act on the intention of parties, collected from the instruments executed by them; it is consistent with all the other leases in the family made under similar powers.

Under these circumstances I confess it appears to me, on the best consideration I have been able to give the case, that this lease is warranted by the words of the power in the settlement, and that the lease is valid.

Dallas , C. J.—I am of opinion that the lease in question is bad, as not being a good execution of the power.

Two objections arise. The first, as to the fifteen days: the second, to the clause providing as to distress: and the case has been argued at the bar, and considered by the learned Judges on the double ground of authority and principle; to each of which I shall separately advert.

And first, as to the fifteen days. The single case cited is of a negative nature; that is, one in which, though other objections were taken, this was

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I come next to the provision as to there being no sufficient distress. And here again, in support of the validity of the lease one case only has been cited, viz. Hotley v. Scot , as bearing directly on the point. On this I shall not waste time by dwelling longer than, in this last stage of the discussion, I feel to be necessary; and therefore, as to the imperfection of the report, the character of the reporter

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To dispose, therefore, of the whole subject of authority, it appears to me, that though these cases as cited have afforded much matter for observation and argument, they furnish nothing like authority when correctly considered, and in a judicial sense. A word or two only, before quitting this part of the subject, on what has been much relied on as applied to the objection of the fifteen days, namely, the general prevalence of such leases to be taken as evincing, it is said, the sense of the Profession, and the mischief that will result from now holding the objection good. I allow to these topics their weight, and much weight undoubtedly belongs to them; but if, when strictly examined, the practice proves to have crept in against principle, and is not pretended to depend upon any positive authority, I can only say, that being bound

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I come now to consider the case on principle. And first, I admit, that if the power is to be deemed indefinite as to time, and therefore to be exercised in a reasonable manner, leaving it to the discretion of the party by whom it is to be executed to decide what is reasonable, it does not appear to me that the giving fifteen days in the way in which they are

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In like manner as to the clause of distress, I see no actual injury as likely to result from it in this particular case. I agree with several of the learned

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The question therefore arises on what the parties have said and done, not on the reasonableness of doing it, or on the sufficiency or insufficiency, the weight and value, which we are not at liberty to consider; and therefore without looking out of the instrument, but to the instrument, and searching in it for the intent to be collected from what is there expressed, if sufficiently expressed, in other words, treating the question as your Lordships desire us to treat it, that is, as a question of construction arising on the instrument such as it is,—what is the legal effect of the lease compared with the power?

And first, to look to the power, (agreeing, as I do, that the intention of the party must govern,) as to be collected from the whole instrument. It directs a clause of re-entry for non-payment of rent, and this merely; nothing is said as to time, nothing as to distress; nothing as to reasonable, nothing as to usual; nothing that refers to any former lease or leases in any way whatever, so as to furnish a rule, though reasonable and usual, ancient and accustomed, are terms to be found as words of reference in several parts of the instrument, directly connecting

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First then as to time. That time may be as properly fixed by the occurrence of an event as by the express specification of time can scarcely be denied; and when rent is made payable on a particular day, connected with a clause of re-entry for rent not paid, I can only understand not paid on the day when payable. In this there is nothing ambiguous, nothing deficient, nothing to be implied to complete what is expressed. Nor has it been argued, that if the lease had been drawn in the very terms of the power it would not have been a proper execution of the power. But it is said in the same instrument twenty-eight days are given for payment on the leases at rack-rent, being a substantial and heavy rent, before forfeiture can attach for non-payment; and it is argued,—Could the party intend a provision so preposterous and harsh as that forfeiture should become the immediate consequence of a half-yearly rent of 20 s . falling into arrear? To which I answer, that this suggestion of harshness appears to me to be imagination, and nothing more; for what of real harshness is there in making an estate liable to forfeiture upon non-payment of a sum so small, as from its very smallness not to require time to be given to pay it? Fifteen days were scarcely necessary to put a party into condition to pay 20 s . And further, why the party to receive could not judge if time were to be given as to the fifteen days as well as to the twenty-eight, I am altogether at a loss to conceive. If at liberty, therefore, to conjecture as to intent, independent of the words made

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But I go farther, and will suppose the question to be, whether the power should not be so construed as to imply a reasonable discretion to have been intended as to time. In such event, it has been asked who is to construe what would be reasonable time? Now, passing by all the difficulties that may arise in this respect, I am willing to answer—the competent tribunal according to the nature of the case. But which, according to the case, is the competent tribunal? This becomes a question. On the trial of this ejectment was it the Jury or the Judge? and though, in the result, which of the two might be ascertained, yet the result could only be got at through, as now, a doubtful controversy; and this uncertainty as to tribunal, with the additional uncertainty as to result, that result depending on the uncertainty

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I come now to the second objection; and though in one light it is the most material, yet it will not be necessary in this late stage of the proceedings to discuss it at any length; I mean restraining the right to re-enter to there being no sufficient distress to be found on the premises. And with respect to this, all I have hitherto said as to time applies with increase of force. It is a further clog, not warranted by the original power, and it is one which, as to possible injury, does not rest in speculation merely. The case so often referred to in the Exchequer forms a practical comment. When resorted to as a remedy it shows the wrong which may result. The lessor of the plaintiff failed because some obscure corner of the premises had not been searched. That case is this; and in a similar proceeding the effect would

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To one or two other points I shall now barely advert. I can scarcely think that the question can be reduced to one of mere verbal consideration. But if so, I cannot myself feel the difference between “on” and “for;” “ for non-payment of rent,” I consider to be equivalent to “ on non-payment of rent;” though I have no hesitation in admitting that “on” and “for” may be sometimes different and sometimes synonymous, and this depending on the context and the subject-matter. But looking at the subject-matter, and taking the whole of this instrument into consideration, I think there is no reason for distinguishing on the present occasion. In like manner, as to the term “beneficial,” I conceive it to refer to the lessor or the remainderman, and not to the lessee; and so understood, if there be any weight in the observations I have hitherto made, such a reservation would be less beneficial to the lessor than the direct clause unclogged with any conditions as to time or distress.

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Abbott , C. J.—I am of opinion that the demise of the 5th September 1803, is not invalid.

The objection upon which it is now sought to avoid the lease is, that the clause of re-entry for non-payment of the rent is not such as is required by the settlement; and this for two reasons. First, because it allows to the tenant fifteen days for payment beyond the days mentioned in the lease; and secondly, because it is restricted to instances wherein no sufficient distress or distresses can or may be had or taken upon the premises, whereby the same, and all arrearages thereof, if any be, may be fully raised, levied, and paid.

This objection is strictissimi juris , and as such is by no means to be favoured; though if the strictissimum jus be found upon due consideration to be with the objector a court of law is bound to yield to his objection. As I have already intimated I think the right is not with the objector.

In the course of the argument your Lordships attention was called to a supposed distinction in the construction of powers, between such as are created by the owner of the inheritance limiting a partial estate to himself, and to be exercised by himself as owner of such partial estate, and such as are created by the owner of the inheritance to be exercised by a stranger, to whom he may have limited a partial estate, or to whom he may have given the power as

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It was also argued, that the power of leasing being for the benefit of the tenant for life, the qualifications and restrictions imposed upon the exercise of the power are for the benefit of the remainder-man; and therefore that the clauses of qualification and restriction are to be construed most beneficially for the latter. This point also appears to have little weight in the present case; because, adverting to the amount of the fine paid upon the surrender of an existing lease, and to the amount of the rent reserved, I think it cannot be supposed that the purchaser of the present lease would have given one farthing less if the clause of re-entry had been strictly confined to non-payment of the rent at the very day; or that the estate of the remainder-man would now be worth one farthing more if the lease in question had contained a clause to that effect, instead of the clause upon which these objections have arisen.

And being of opinion that the tenant for life could derive no benefit, and that the remainder-man sustains no prejudice as to the value of his interest, from the form in which the clause of re-entry is found in this lease, I think a court of law may reasonably regard the interest of the tenant, the purchaser of the lease , and put such a reasonable and liberal construction

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These words, in the present case, are “a power of re-entry for non-payment of the rent to be thereby reserved.” And the first question is, whether these words may be understood to mean a reasonable power, or must be confined to a power which the landlord may exercise if the rent be not paid at the very day, and without regard to any property to be found on the demised premises, upon which he may levy his rent, and thereby compensate himself at his tenant's expense for his tenant's neglect.

If the words may be understood to mean a reasonable power, the only remaining question will be, whether the power of re-entry contained in this

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Then if the words of the power, or rather of the qualification of the power contained in the settlement, cannot receive a literal construction, and be held to apply to a case of neglect or default only according to their literal purport, they must receive some other and different construction, which must in my opinion be a reasonable construction, and a construction properly suited to the object and purpose in view; that is, to secure and enforce the payment of the rent, so that on the one hand the tenant may not hold the land without payment to the prejudice of the landlord, nor on the other hand, be dispossessed of it, if either himself or the land, which is emphatically said to be debtor for rent, presents payment, or the means of payment, without unreasonable delay or prejudice to the landlord.

It has been objected however, that if the literal or strict meaning of the words be not adopted no other meaning can be, because, as it was said, courts of law cannot say what is a reasonable power or clause of re-entry. But I conceive that in this as in all other cases courts of law can find out what is reasonable, and that in some cases they are absolutely required to do so. In many cases of a general nature or prevailing usage the Judges may be able to decide the point of themselves; in others, which may depend upon particular facts and circumstances, the assistance of a jury may be requisite, and wherever such assistance is requisite there are ready modes of obtaining it. I will mention one instance in which courts of law are required by the Legislature

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For these reasons I am of opinion that the words of the clause in question may and ought to be understood to mean a reasonable power of re-entry. And taking this to be the legitimate meaning of the words, I proceed to show that in my opinion the power of re-entry contained in the particular instance of the lease in question is a reasonable power. Usage is of great weight in considering what is reasonable; and it cannot be denied that the power of re-entry, as expressed in this lease, is in form and substance such as was frequently found in leases before the execution of the settlement by Louisa Barbara Mansel, which was in 1757. This is a fact which must be in the knowledge of some of your Lordships, without recurring to the special verdict

Footnote

* 41 Geo. III. c. 109. s. 38.

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Upon this part of the argument the case of Coxe v. Day * was quoted and relied upon. It has however been discovered that the decision in that case is contrary to a prior decision of the Court of King's Bench in a case of Hotley v. Scot , reported in Lofft, and of which a more correct manuscript note was also cited. This earlier case was unknown to the counsel by whom Coxe v. Day was argued, and probably to the Court also; so that the decision of Coxe v. Day is not wholly free from question as to its own particular circumstances. It was certainly not thought applicable to the present case by the two surviving Judges of the Court when the present case was before them; and it is distinguishable from this by the difference of the language of the clause

Footnote

* 13 East, 118.

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Such a restriction of the right had prevailed in practice before the execution of this settlement in 1757. It was known and in use, though probably less general or frequent before passing the statute 4 Geo. II. * in 1731. If the effect of that statute be (as at least one very learned person has thought) to alter entirely the common law, and to take away the right of re-entry under any circumstances of demand and refusal of the rent, where a sufficient distress can be found, then certainly the express introduction of the words of restriction cannot invalidate the lease,

Footnote

* C. 28, s. 2.

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For these reasons I am of opinion that the demise of the 5th September, 1803, is not invalid.

The Lord Chancellor .—The question which is now brought before your Lordships for decision is undoubtedly a question of very great importance to the parties. We have to determine upon the validity of a particular lease, which is stated in the special verdict. The decision upon that lease however will not only give validity or invalidity with respect to the lease in question, but, as we have been informed upon the argument at the bar, will give validity or invalidity to the leases of a very considerable property. The plaintiff therefore has a great interest in your decision. The tenants of course have a very considerable interest in your decision; but the interest in your decision is not confined to the landlord and the tenants in this case, because I apprehend that if these leases are invalid, the tenants in this case, probably, as in a case from another part of the united kingdom, I mean the case of the Queensberry leases * , will have a title to recover against the assets of the deceased lessor the value of the interest in the lease, if the decision should be against the validity; but however great the interest of any of these parties may be; it is most for the

Footnote

* Ante , Vol. 2, p.

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If I could foresee that by asking for further time I might alter that opinion which it is my duty to inform you I have long entertained upon the question now before you, or if I could, consistently with my other important engagements and duties, hope to find time to lay down the statements which I am now about to make with more method, I should certainly wish your Lordships to delay hearing what I have to say on this subject. If I could hope to relieve myself from the pain which I do most sincerely feel in maintaining an opinion upon this subject different from that which has been expressed by persons for whose learning and abilities I entertain the greatest respect, I should for that reason also endeavour to press your Lordships to delay hearing what I have to offer.

I must confess, that, from the habits of my professional life, I felt at first considerable surprise indeed how it could be that upon some of the questions agitated in this House there could be any difference of opinion any where. With respect to the authorities, you have heard observations which are perhaps much more apt than any I could presume to offer to your attention upon the conflicting cases of Hotley v. Scot and Coxe v. Day , and the negative authority of the case before L. C. J. Willes, who I believe was a very great lawyer. Those authorities, I hope I shall not be thought to treat with any disrespect, which certainly I do not mean, when I avail myself of what has fallen from the two learned Chief Justices in their observations on

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But it does not rest there, because you have to consider the question as applied to marriage-settlements which are framed in different ways. You have marriage-settlements where an estate for life is granted to A , with remainder to the wife for her life, with an interposition of trustees to preserve contingent remainders before the limitations to the issue. In some settlements there is a power to the tenant for life to make leases, which is given not only for the benefit of the tenant for life, but it is a power which you are permitted to insert in the settlement for the purpose of the due cultivation and management of that estate which they are first to enjoy, and others after them; but that power of leasing in a well-framed settlement is not merely given to the tenants for life, but frequently to the trustees, while there are infants who do not as yet take an interest entitled to the benefit of it, but who are not capable of managing the estate. Suppose the father and the mother to die, and then there being trustees to preserve contingent remainders, it becomes necessary to make leases. Or suppose that a settlement is made, in which the legal estate of inheritance, the legal fee, is entirely vested in the trustees; where therefore a legal lease cannot be made by the equitable tenant for life, nor the remainder-man, nor the issue, but during the infancy, it may be made by the trustees. In both those cases it frequently happens that the trustees in the one case to preserve contingent remainders, in the other

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It does not rest there; for in the case put by one learned Judge, suppose the tenant for life here had agreed with this occupying tenant to make him a lease, with a power of re-entry giving such an extension of time, and then the tenant had filed a bill in equity to compel him to make a lease according to the agreement. No Chancellor could possibly have directed a lease to be made with fifteen days time in case of a nonpayment of rent, unless he was satisfied

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Suppose the case where commons are divided under the General Inclosure Act * . There are certain persons having a portion of those commons, who though perhaps seised of a large property yet only have an enjoyment for lives, I mean parsons and vicars. A parson or vicar under the inclosure act is authorized to make leases in which there must be a power of re-entry within a reasonable time. We have acted under that general inclosure act ever since it passed. Parsons and vicars have been making leases ever since; and I believe you will find that the universal practice has been to give days in the manner days are given in this lease. It is truly said, that is within reasonable time which is authorized. But I should be very glad to know what difficulty there can be in courts of justice deciding what forms reasonable time, when the Legislature has expressly said all these leases shall be made with allowance of a reasonable time. In the very parish in which parson and vicar have this sort of power there may be fifty tenants for life for successive estates in land. In such a case the course of proceeding is, that the allotments are to be enjoyed

Footnote

* 41 Geo. 3, c. 109, § 38.

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But I think we may lay out of the question the authority of practice. I proceed to comment upon the terms of this settlement, taking it for granted that it is understood on all sides that this special verdict completely finds every thing that ought to be found. I put that upon the understanding of the parties. We have had in the course of argument at the bar a great deal of discussion upon the admissibility of extrinsic evidence. Now, with reference to extrinsic evidence, my humble opinion is, that this is a case in which you must admit some extrinsic evidence; you ought not to admit

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I think in this case you might state it thus:—Here were leases made prior to 1757; the settlement refers to existing leases at the time when the new instrument is made, it refers in that part of it which gives the power of making future leases to the existing leases. I do not carry it so far as to say you shall go back to a great length of time to see what were the habits of leasing prior to those existing leases, but I say you must go to those existing leases, or it is impossible to collect

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With these general observations I call your attention to what this case is. A lady, named Louisa Barbara Mansel, afterwards Louisa Barbara Vernon, was tenant for life of the estates, with several remainders over. The will under which she claimed as tenant contained a power to her in consideration of marriage, either before or after marriage, of revocation and appointment, as afterwards pursued by her in the deed of settlement. The special verdict states, that upon the 20th of July 1757 she intermarried with Mr. Vernon; that before the marriage, upon the 2d of July 1757, she by her deed revoked the uses and devises contained in the said will concerning the said premises, and appointed and limited the same to Francis Earl of Guildford, and Charles Montague, and their heirs, in trust, to hold the same to the same uses as before limited, until after the said marriage, and then to the uses of the said George Venables Vernon for life, without impeachment of waste, remainder to the said Louisa Barbara for life, without impeachment of waste, and in the mean time to the said Francis Earl of Guildford, and Charles Montague, and their heirs, to preserve contingent remainders, and to permit the said George, during his life, and afterwards the said Louisa Barbara, during her life, to

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Before I state that clause I will mention another head of authority, which I confess has disturbed me a good deal with respect to these fifteen days. By a statute * made some years ago the Legislature empowered the committees of lunatics, by authority of the Court of Chancery, where those lunatics were tenants for life, with powers of leasing, to make such leases as the tenants would have made if they had been of sane mind; and I never had the least doubt, in consequence of the habits of my professional life, in directing them to make leases with this ordinary reservation of fourteen or fifteen days, with respect to the time of forfeiting the estate. I certainly did, however, think it right, in deference to the opinions which I understood had been stated in the Exchequer Chamber, to check myself in that practice, and to take care that that habit should no longer be acted on. So, if a parson or vicar should be a lunatic, who had an allotment under an inclosure act, and it should become necessary for the Court to act, I should have directed the execution of the power in a similar manner.

Where a power of this sort is given in a marriage-settlement

Footnote

* 43 Geo. 3, c. 75, § 3 and 4.

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In this case there were three species of estates of which leases were to be made; one of these estates, as I understand, usually demised for lives upon payment of a fine, which payment of a fine is in truth a great portion of the consideration which is paid for such leases; and the small annual rents and other services, though of some value positively speaking, are of little value compared with that other part of the consideration; they are a sort of rental, which is rather from time to time calculating a small sum of money off the value, than paying any part of the value of the estate. The next species of lands are lands to

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The condition to which we are particularly to attend is this; “and so as there be contained in every such respective lease, demise, or grant; and so as on every such respective lease, demise, or grant for a life or lives, or for years determinable on the dropping of a life or lives, there be reserved and made payable, during the continuance of the estates and interests thereby to be demised, leased or granted respectively, the ancient and accustomed yearly rents, duties, and services; or more, or as great or beneficial rents, duties, and services, or more, as now are, or at the time of demising or granting the premises so to be demised, leased, or granted respectively, were reserved or made payable for or in respect of the same premises respectively, or a just proportion of such ancient or the present reserved rents, duties, and services, or more, according to the value of the premises so to be demised, leased, or granted respectively;” and then come the exceptions with respect to the heriots, and the usual clause, that these were to be for the benefit of the persons entitled from time to time.

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Now, let us suppose ourselves sitting down to make a new lease of these premises after the year 1757, of premises which in the year 1757 were held under a then existing lease, addressing ourselves to the execution of that power. Is it possible to deny, that in order to see how the power is to be executed you must look at that existing lease which is the lease immediately preceding that which you are to execute? I do not carry it farther; I do not enter into the question whether you are to go back into the more remote periods of time and see what was the habit in all times past; but I say you are bound to receive the evidence to which the language of the power refers you; and you are bound to receive the evidence of the deed containing the power. If you mean to demise the lands according to the ancient and accustomed rent you must go to former leases to know what it is; so as to the duties and services. It is not necessary they should be the same yearly rents, duties, and services, or more, but they may be as great or beneficial rents. I have no difficulty in saying, that under this clause you might reserve as great a rent, or as beneficial rents. I have a right to look at this word “or” as being of some signification. I find in other parts of the lease as great and beneficial. This is to be as great or beneficial; and I cannot help expressing the opinion, that I entertain a very considerable doubt whether, if this clause as to the distress had not been contained in the new lease, the new lease for that reason would not have been bad.

If it be argued, that demising for a rent of 2 l .

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Then, come these words, and let us suppose that they are necessary; “and so as there be contained in every such lease a power of re-entry for non-payment of the rent thereby to be reserved;” and this occurs in an instrument, where with respect to property upon which the best and most improved yearly rent was to be reserved, and where, with respect to that rent which was to be so reserved a rent which was de anno in annum , and from half year to half year, rendering to the landlord the value of the enjoyment for those periods by the

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I take it now upon the first objection as to the fifteen days; and I should be very glad to ask whether a power of re-entry for non-payment of rent in fifteen days is not a power of re-entry for non-payment of rent? No man can deny to me that it is a power of re-entry; no man can deny that it is a power of re-entry for non-payment of rent. It is not the same power as it would be if it was twenty days, or twenty-five days, but still it is a power of re-entry for non-payment of rent; and where are the words on which the parties insist there shall be an unconditional power of re-entry for non-payment of rent. They have said no such thing.

Now, to recur again to the impression that old habits make on one's mind, it would have appeared to me, previous to the agitation of this case, one of the most astonishing things, having had a good deal to do with decisions at law, that where powers are so generally expressed as to leave it in the party to say this is a power of re-entry for non-payment of rent, that these words generally expressed, considering the practice, are to be an actual execution of the power: it would be most astonishing to me, that if there was a lease to be made, the lessor could insist it should be no lease, but a lease giving a power of re-entry at the day. I should say that was contrary to the habit and usage of a Court of Equity. Speaking from that

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But that does not touch the question about distress, I admit, save as it touches the question if the same qualification of distress was in the former lease; because if the same qualification of distress was in the former lease, then the same arguments that you build on giving the period in the former lease applies to giving the distress; but if this means a reasonable power of re-entry, and if that has been the construction usually put on it, it is the same as if the lease was directly conformable to the power. The practice has applied that quality to the reservation of a power; and I know no difference between determining what is reasonable with reference to that object, and what is reasonable as applied to the other objects: when you speak of a reasonable

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I might stop there, because though I cannot agree with the learned Judge, who thinks that the statute of 4 Geo. 2 is imperative, yet it is impossible for me to deny that the statute of 4 Geo. 2, and the General Inclosure Act, and all the practice to which I have been alluding, does establish, beyond all question, that it is a reasonable execution of a power even where this clause of distress is put in; and when we are considering these circumstances let us attend to the extreme importance of the question before us in one respect. You are not merely in the execution of a power to consider what is most beneficial as between A . the tenant for life, and B . the remainder-man, but what is most beneficial to both, and to each with reference to the terms on which tenants are to be procured; and though in this case there is very little difference, perhaps, of convenience or inconvenience to the tenant, whether he is to pay on the day it is reserved, or fifteen days afterwards, yet on the one hand, if there be that little inconvenience, I say that is a ground why if the words of the power contained in the settlement will allow you to give those days, you shall not say that it is a forfeiture of the lease; and on the other hand I say, though the quantum of convenience be ever so small, yet that the principle in deciding these cases requires you to consider, not merely what is for the benefit of a person having an interest in one parcel of the

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There is another way of putting it, which is material, if I am not wrong in my notions of the practice, if powers are to be executed for the benefit of all persons having an interest in the inheritance, what will be the situation of persons who have those powers is a most serious consideration; and I cannot agree with those who profess to have paid less attention to the state of titles than they ought, because, unless I mistake, nothing requires more attention; so as to what practice has introduced, and what would be the inconvenience of shaking that practice; and you are to consider, too, that unless you are to adopt the principle, that in a settlement where a power is given as nakedly in the terms of it as here, you are to execute that power in the precise terms; that no tenant for life, no trustee, nobody, in short, who has not an absolute inheritance in the estate, will ever think of executing a power without the direction of the Court to tell him whether it is right or wrong; the inconvenience of which would be infinitely great. But I am of opinion that these words are words of course; in the language of Mr. Justice Bayley , (and the diversity of powers is acknowledged in Brook;) that this is an entry for non-payment of rent; that the words of the settlement do not condemn such a power for re-entry for the non-payment of rent as is here reserved; and I think the qualifications in this power have had the authority of the Legislature for saying that they are reasonable; and therefore on these grounds I shall offer my opinion that these leases are valid.

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Lord Redesdale :—Having attended throughout the discussion of this question, and having from a very early period of life had much converse with that part of the law which enables me more particularly to consider cases of this description, I mean conveyancing, I think it my duty to offer a few words to your consideration.

With respect to what has been said as to general opinions upon the subject, and the practice of conveyancers, I cannot agree with much that has been said, because I do conceive that the law has frequently been decided even in the construction of Acts of Parliament upon what has been the general understanding of lawyers as to the true construction of these Acts of Parliament; and I will instance such a case under the statute of jointure. This House determined in the case of Drury v. Drury * that a rent-charge settled on an infant was within the statute † of jointure a good bar of dower, not because such was the literal interpretation of the statute, but because such had been the constant practice of conveyancers and others touching the subject, and it was expressly upon that ground that the decision at that time went; and I do conceive that it is of the utmost importance that the House should use its judgment by such a criterion whenever the case occurs, for otherwise all property must be in

Footnote

* 3 B. P. C. 492; by the name of the Earl of Bucks v. Drury , See Eden's Rep. vol. 2, pp. 39 & 60.

† 27 H. 8, c. 10, s. 6.

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I have thought it necessary to say so much upon that part of the case, because I think it would be highly dangerous to treat it in the manner in which it has been treated by a learned Judge, and, with great deference, I cannot agree to what the learned Judge said, because I think that practice is most important to the consideration of the case if you wish to preserve property to persons who are in possession,

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With respect to the case before you, it appears to me that it is necessary only to consider, for the purpose of the final decision of this question, the very words of the instrument. Words used in an instrument of this description must be construed according to the subject to which they are applied. The words here used, and which are in question, are applied to a power over a particular description of property. The power is one power applying to three descriptions of property, and varying according to those three descriptions: First, of property which was under the settlement, let upon leases for life, or lives, or for years determinable upon life or lives: Secondly, of property that consisted of lands not under such leases, but under rack-rent leases; and thirdly, of mines. Now is not that evidence that the persons who framed this instrument contemplated those three species of property under the different circumstances in which they stood; and what is the manner in which they contemplated that property which was leased for lives, or for years determinable upon lives? what did they mean to give by the power? As to that property they meant to give the same power of enjoyment which the person who had gone before had of the property. By the nature of that property no benefit could be derived from it for a considerable term of years

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With respect to the two parts of the property, that which is on leases for lives, or for years determinable on lives, and that at rack-rent, there were introduced

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Suppose a contract was entered into between two persons, the one having the property, and the other willing to take that property, and that contract was so executed as that it purported there should be in the lease to be granted under that contract a power of re-entry for the non-payment of the rent, how would that contract be executed if it was to be specifically performed under a decree of a court of Equity? would a court of Equity have ever thought they were compelled under the terms of that contract, by those words to require that the power of

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I conceive, therefore, that in this case it must be taken to be the intention of the parties to the instrument not to be precise with respect to the terms in which the power of re-entry was to be reserved, but merely to give a note signifying that a power of re-entry should be reserved for non-payment of rent, meaning thereby that that power which was contained in the former leases, should be inserted

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But suppose this had not been a question before a Court of Equity, but before a Court of Law;

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Upon the whole, therefore, it appears to me that the lease is a valid lease, because it is made, as it is found by the special verdict, in conformity to the other leases; and I consider the words of the settlement referring to those leases to have the effect of saying in this particular case,—if in any of the renewals of a lease, where there had been no power of re-entry in any particular case of that description, the question should arise how that power of re-entry was to be reserved, that it was to be reserved according to that which had been the practice

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Therefore it is upon the particular words of this instrument, the settlement of 1757, and not upon any general view of the case, that I conceive that this lease ought to be supported, and that the judgment of the Exchequer Chamber should be reversed, and the judgment of the King's Bench affirmed.

Ordered accordingly.