Condition of re-entry for non-payment of rent, or nonperformance of covenants. little injury to the demised premises as may be, and ood such injury as shall unavoidably be done. PROso, that if the said yearly rents hereby reserved, or them, or any part thereof respectively, shall be in for the space of thirty days next after either of the inbefore appointed for payment thereof, or if default ade in the observance or performance of any of the hereinbefore contained (26), then, in either case, it wful for the said [lessor], his heirs or assigns, to to the said demised premises, or any part thereof in f the whole, and to repossess and enjoy the same as heir former estate, and upon such entry the said granted shall determine. AND the said [lessor], Covenant by his heirs, executors, administrators, and assigns, lessor for quiet mants with the said [lessee], his executors, adand assigns, that it shall be lawful for the said xecutors, administrators, and assigns, (he or they id yearly rents hereby reserved, or such of them ayable, and observing and performing the coveefore contained), peaceably and quietly to hold said hereby demised premises during the said ears, without any eviction, interruption, or dethe said [lessor], or any person or persons lawto claim through, under, or in trust for him. enjoyment. re-entry in leases under powers. Condition of re-entry for er to lease, requiring the insertion of a condition of Condition of breach of covenant. HABENDUM, -for term of years. REDDENDUM, Leases under powers-reservation of rent. containing acres or thereabouts, all which premises are now in the occupation of the said [lessee], and are delineated in the plan drawn in the margin of these presents; Together with all the rights, members, and appurtenances whatsoever to the said premises belonging or appertaining: To HAVE AND TO HOLD the said hereby demised premises, with their appurtenances, unto the said [lessee], his executors, administrators, and assigns, for the term of years, to be computed from the day of last, YIELDING and paying therefore unto (22) the said [lessor], his heirs or assigns, (22) When the lease is granted under a power of leasing given to a tenant for life, the better plan is to reserve the rent generally, without stating by whom it is to be received; and the same observation applies to every case in which the circumstances of the title would render the framing of a reservation in favour, expressly, of the persons entitled to the reversion, difficult or hazardous. The reservation may declare, (adopting the usual language of powers to lease), that the rent shall be "incident to the reversion;" but the law, without the aid of any declaration, gives Caution as to the rent to the reversioner for the time being. It may be useful to repowers of tenant mark, that a tenant for life with power of leasing, &c., departing with for life aliening. his life estate, or demising for a term of years, to a mortgagee or annuitant, should expressly stipulate (if such be the understanding of the parties) for the right of exercising his powers notwithstanding the conveyance or demise. The stipulation may be to this effect:-"Provided, "nevertheless, that these presents shall not extinguish or suspend any "of the powers, authorities, or discretions, [or, the power of leasing, or any other specified powers], given to the said [tenant for life] by the "said recited indenture of settlement, but every such power, authority, "and discretion shall be exercisable by the said [tenant for life], without "the concurrence of the said [grantee of tenant for life], (his heirs,) execu"tors, administrators, or assigns, as effectually as if these presents had not "been made." With reference to the effect of alienation by tenant for life upon powers appendant (as they are termed) to the life estate, the recent case of Long v. Ranken (Sugd. Pow. 6th edit. App. n. 2) is particularly important. (See also Tyrrell v. Marsh, 3 Bing. 31; 10 Moo. 305: Davies v. Bush, M'Clel. & Y. 53). The view there taken by Lord Tenterden of powers to appoint the use, appears to be the result of a clear and accurate perception of the principles on which they really operate. The learned judge seems to reject the notion which treats the estates arising under them as taking effect wholly or partially out of the estate of the donee of the power, and which refers them, on that ground, to a separate class, when he observes-" a leasing power given to a tenant for “life, is usually spoken of in our books as a power appendant to the es"tate of the tenant for life; and it is said that the estate of the lessee is in "such a case derived out of the estate of the tenant for life, for such period " of the term as he may happen to live. It would probably be more correct "to say, that it operates upon that estate, than to say, that it is derived Powers appendant,-their mode of operation. of a yearly rent payable of an additional rent per acre for meadow or pasture broken up. during the said term, the yearly rent of £— of lawful British money, in even portions half-yearly, on the half-yearly; day of and the day of in every year; ALSO YIELDING and paying during the said term, unto the said [lessor], his heirs or assigns, on the days aforesaid, (in addition to the said yearly rent of £-, hereinbefore reserved), for every acre of meadow or pasture ground which the said [lessee], his executors, administrators, or assigns, shall plough, break up, or convert into tillage, contrary to the covenant hereinafter contained, the yearly rent of £ of like lawful money, on the days and in manner aforesaid, the first payment of the said additional rent to be made on such of the said days as shall happen next after such ploughing, breaking up, or conversion into tillage, as aforesaid. AND the said [lessee], for himself, Covenants by his heirs, executors, administrators, and assigns, hereby covenants with the said [lessor], his heirs and assigns, that the said to pay rents; [lessee], his executors, administrators, or assigns, will, during the said term of years, pay or cause to be paid unto the said [lessor], his heirs or assigns, at the times and in manner aforesaid, the said yearly rents hereby reserved, or such of them lessee; and rates; as shall be payable; Also, that the said [lessee], his executors, to pay taxes administrators, or assigns, will pay and discharge all taxes, rates, assessments, and impositions, parliamentary and parochial, (including land-tax), which, during the said term, shall become payable in respect of the said demised premises; Also, that the said to repair; [lessee], his executors, administrators, and assigns, will, during the said term, at his or their own expense, maintain and keep the said demised premises, (other than the said furniture), with "out of it even during that period." In truth, uses limited in execution of powers always receive their legal character from the impression originally communicated to the seisin raised to serve all the uses, limited and to be limited, by or under the conveyance containing the power, and are wholly independent of the estate of the donee. However convenient it may be to divide powers into powers appendant, powers in gross, &c., yet that division is rather formal than substantial. The execution of the ordinary power of leasing operates upon the estate of the tenant for life, because that estate is a component part of the fee upon which the power is superinduced. The Powers simply most remarkable feature in the doctrine of powers (and it must be consi- collateral-dered an anomaly) is, that a power simply collateral, as, for example, a structibility. power of revocation and appointment, given by a settlement to a stranger, taking no estate in the land, cannot be released by the donee. Of course, the donee may refuse it in the first instance, but having accepted it, he cannot, it seems, afterwards extinguish it. their inde to convey; -for freedom from incumbrances; as aforesaid, of the said hereditaments and premises, with -and has right their appurtenances, and bas in himself good right by these presents to release or assure the same hereditaments and premises unto the said [relessee], his heirs and assigns, in manner -for quiet en aforesaid; And also that the said hereditaments and premises, joyment; and the rents, issues, and profits thereof, shall or may be peaceably and quietly held, received, and enjoyed accordingly, without any eviction or interruption from or by the said [relessor], or any person or persons rightfully claiming through, under, or in trust for him; Free and clear, or by the said [relessor], his heirs, executors, or administrators, effectually kept indemnified from or against all other estates, rights, titles, charges, and incumbrances, created or occasioned by the said [relessor], or any person or persons claiming through, under, or in trust for him, or by his act, default, privity, or procure—and for fur- ment; And, lastly, that the said [relessor], and every person rightfully claiming through, under, or in trust for him, will, at any time or times, at the request and costs of the said [relessee], his heirs or assigns, do and execute every such act, deed, conveyance, or assurance for more effectually releasing, confirming, or otherwise assuring the said hereditaments and premises, with the appurtenances, in manner aforesaid, as by the said [relessee], his heirs or assigns, or his or their counsel in the law, shall be reasonably advised and required, and as shall be tendered to be done or executed. IN WITNESS &c. ther assurance. RECEIPT for Purchase-Money to be indorsed. Received on the day of the date of the within-written indenture, from the within-named [relessee], the sum of £sterling money, being the consideration expressed in the same indenture to be paid by him to me the within-named [Signature of Relessor]. Witness to the payment mentioned in the above receipt, and to the signing thereof, [Signatures of Witnesses]. No. 6. RELEASE by a Reversioner in Fee to a Tenant for year of our Lord, BETWEEN [relessor], of &c., of the one TESTATUM. part, and [relessee], of &c., of the other part, WITNESSETH, Consideration. that, in consideration of the sum of £ of lawful British money paid by the said [relessee] to the said [relessor], on the execution of these presents, in full for the absolute purchase of the fee-simple in possession, free from incumbrances, (except such as are hereinafter excepted), of the hereditaments hereinafter described, the receipt of which sum the said [relessor] hereby acknowledges, and from the same sum hereby acquits the said [relessee], his heirs, executors, administrators, and assigns; The said [relessor] Hath granted, bargained, sold, re- Operative leased, and confirmed, and by these presents Doth grant, bar- words. gain, sell, release, and confirm unto the said [relessee], and his heirs, (in his actual possession (30) now being by virtue of a de- "Actual posmise made to him by the said [relessor], by indenture bearing clause. (30) If the relessee be in possession under a common law lease, perfected by entry, then, the release being likewise a common law assurance, the fee will pass by the common law exclusively. But, if the relessee be in possession under a lease for a year or for a term of years, created by an instrument operating by way of bargain and sale, then the conveyance will owe its inception to the Statute of Uses; but still, under the release, the relessee will be finally in at the common law. The precedent in the text is adapted to either case. But, whether the lessee be in by the common law, or under the Statute of Uses, if the release be to the use of any other person than the relessee, the release will operate under the Statute of Uses, (vide post, n. 31), and the freehold will be executed in the cestui que use of the release under the statute; and, in pleading such a deed, no profert in curiam is necessary, inasmuch as the deed belongs by virtue of the release to the relessee, and does not pass on with the land to the cestui que use. A fortiori no profert in curiam is necessary where the deed operates without transmutation of possession, as in the case of an indenture of bargain and sale, a covenant to stand seised, &c.; the legal right to the custody of the instrument being in the bargainor, covenantor, &c.; although, by the operation of the statute, he has ceased, even at law, to have any interest in the land. session" Operation of release the same, whether relessee be in by the common law or under the statute. |