lease "shall not be within the jurisdiction, or not amenable to the process of the court" the court of Chancery is enabled to appoint a person to accept a surrender, and grant a new lease in the name of the person who ought to have renewed the same; "but in every such case it shall be in the discretion of the said "court of Chancery, if under the circumstances it shall seem requisite, to direct a bill to be filed to establish the right of the "party seeking the renewal, and not to make the order for such new lease unless by the decree to be made in such case, or

66

2 Sect. 20.

"until after such decree shall have been made1." No renewed 1Sect. 18. leases are to be executed under the authority of this act in pursuance of any covenant or agreement, until after payment of such fines or other sums of money, and the performance of such acts as are required by such covenant or agreement to be paid or performed; and counterparts of every such lease are to be duly executed by the lessee2; and it is also enacted, "that all fines, pre"miums, and sums of money, which shall be had, received, or paid "for or on account of the renewal of any lease, after a deduction "of all necessary incidental charges and expenses, shall be paid, "if such renewal shall be made by or in the name of an infant, to "his guardian, and be applied and disposed of for the benefit of "such infant, in such manner as the said court shall direct; if "such renewal shall be made by a feme covert, to such person or "in such manner as the court shall direct for her benefit; if such "renewal shall be made in the name of any person out of the "jurisdiction or not amenable as aforesaid, to such person or in "such manner, or into the court of Chancery to such account, and to be applied and disposed of, as the said court shall direct; "and if such renewal should be made in the name of a lunatic, "to the committee of the estate of such lunatic, and be applied and disposed of for the benefit of such lunatic, in such manner "as the Lord Chancellor intrusted as aforesaid shall direct; but upon the death of such lunatic, all such sum or sums of money "as shall arise by such fines or premiums, or so much thereof as "shall remain unapplied for the benefit of such lunatic at his "death, shall, as between the representatives of the real and personal estates of such lunatic, be considered as real estate, "unless such lunatic shall be tenant for life only, and then the << same shall be considered as personal estate 3."

66

• Sect 21.

Sect. 23.

66

It is also enacted, "that where any person, being lunatic, is or I shall be seised or possessed of any land, either for life or for "some other estate, with power of granting leases and taking "fines, reserving small rents on such leases, for one, two, or "three lives in possession or reversion, or for some number of 66 years determinable upon lives, or for any term of years absolutely, such power of leasing which is or shall be vested in such person, being lunatic and having a limited estate only, shall "and may be executed by the committee of the estate of such person under the direction and order of the Lord Chancellor1." Apportionment of the fines and expenses of renewal.]-When no fund is provided for the expenses of renewal, and it devolves on the court of Chancery to apportion these expenses between the tenant for life and those in remainder, the rule formerly was, that the tenant for life should pay one-third, and the person in remainder two-thirds,—a rule manifestly arbitrary and unjust in its operation: since, if the tenant for life were advanced in years, he would pay much more than his true proportion; whereas, if he were a young man, he would probably have the whole benefit of the renewal, to the prejudice of the remainderman. The rule now established is, that the parties to the renewal shall pay the expenses in proportion to the benefit they actually derive from it2. Upon this principle, annuitants, whose annuities are charged by will upon leasehold property, are bound to contribute to the renewal of leases in proportion to the value of their annuity 3. Where the settlement expressly provides a fund for the payment of the fine and other expenses of renewal, the mode of raising and see Moody' them, and the apportionment between the tenant for life and the persons entitled in remainder is, of course, to be governed by the intention of the settlor, as that is to be collected from the whole tenor of the instrument. Thus, in a late case 4, where the first trust of leasehold property held for lives and years, was to pay the fines on renewals out of the rents and profits, and the next trust was for the benefit of those who in strict settlement took freehold and copyhold property under the same will,-the expenses of renewal were held to be incidental to the leasehold property, and that they ought, therefore, to fall upon those who from time to time were in the possession of it under the will; the trust for the renewal overriding all beneficial interest in the

White v. White, 5 Ves. 554; 9 Ves. 560.

3 Stubbs v. Roth, 2 Ball

& Beat. 554; Winslow v. Tighe, Id. 206;

v. Mathews, 7 Ves. 174.

4 Playter v. Abbott, 2 My. & Kee. 97.

244.

leases, and like the expense of an embankment, referred to by Lord Thurlow in Stone v. Theed', to be considered as incident to 12 Bro. C. C. the property, which is to fall upon the persons for the time being in possession. A direction in a will to renew a leasehold estate out of the rents and profits, is equivalent to a power to raise the sums necessary for the purpose by sale or mortgage, for, as the sum to be raised must be paid immediately, it cannot be intended that it should be raised out of the annual rents and profits 2. It would seem, however, that a power for tenant for life to charge the fines upon the property by means of a mortgage, would not authorize him to throw upon the remainderman the expense of insuring the life in the lease for the better security of the mortgagee3.

Allan v. Backhouse, 2 Ves.

& Bea. 65; Jac. 631.

'Grantley v. Garthwaite, 6 Madd. 26.

CHAPTER VIII.

OF ESTATES FOR YEARS.

SECT. 1.-OF THE CREATION AND DETERMINATION OF AN
ESTATE FOR YEARS.

SECT. 2.-LEASEHOLD COVENANTS.

SECT. 3.-LIABILITY OF THE ASSIGNEE OF A LEASE. SECT. 4.-CONSEQUENCES OF BREACH OF COVENANT AT

LAW, AND IN EQUITY.

SECT. 5.-OF THE LANDLORD'S REMEDIES.

SECT. 6.-OF merger.

SECT. 7.-OF FIXTURES.

SECT. 8.-EFFECT OF LOCAL CUSTOMS AND USAGES AS TO 'WAY-GOING CROPS, &c.

AN estate for a term of years, although in estimation of law a very subordinate interest in the land, is nevertheless one of the most convenient and universal modifications of the ownership of real estate. So slightly was it valued at common law, that previous to the statute of 28 Hen. 8, c. 32, the tenant had no security for its possession; and of so little importance was it esteemed in comparison with the freehold, that it was considered merely as a chattel interest. And hence, while an estate for life was considered to be entitled to the dignity of being treated as real property, a term of years, however long the period of its continuance, was held to be nothing more than personalty. The various uses to which this species of estate has been found to be applicable, have long rescued it from neglect; and it now constitutes one of the most important branches of the law of real property. Terms of years are created for various purposes, and are variously designated according to the purpose they are intended to effect. Until within a comparatively recent period, terms of years were universally created in mortgage transactions; and they are extensively resorted to at the present day in settlements for the purpose of securing portions, jointures, raising money for the payment of debts, &c. Such terms are usually for long periods, as five hundred or a thousand

years,

and

is

on this account are commonly called long terms. Another species
of terms are those created by what is familiarly known as a build-
ing-lease; and these are commonly for a term of ninety-nine years,
or some similar period: terms of a like duration are frequently
created for mining purposes, or when extensive repairs or im-
provements, or a considerable outlay for any
other purpose
contemplated by the tenant; the premises during this period.
being usually held at a rent, called the ground-rent, so low as
in fact almost to constitute the lessee the beneficial owner
of the property during the continuance of the lease. Terms,
again, of lands or houses are commonly created for still
shorter periods, as twenty-one, fourteen, or seven years, or even
from year to year, for the purposes of farming, or occupation,-
such leases being called farming or occupation leases, and the
rent reserved being generally the full value, and called a rack-
rent. If the term be created for a particular purpose, as to
secure a sum of money, or to raise portions, when that pur-
pose has been effected, the term, unless surrendered or merged in
the inheritance, remains outstanding, and becomes, as it is called,
attendant on the inheritance; until this purpose has been effected
it is said to be a term in gross, that is to say, an interest in the
land separate and divided from, and independent of, the ownership
of the inheritance. Such a distinction, it is obvious, cannot apply
to a common farm or occupation lease; since, from its very nature,
the completion of the purpose for which it was created is neces-
sarily contemporaneous with the duration of the term; and, there-
fore, such a term being, like all others, a term in gross in the first
instance, necessarily continues so till its termination.

SECT. 1.-OF THE CREATION AND DETERMINATION OF AN

ESTATE FOR YEARS.

Proper parties to grant a lease, 337.-Leases of charity-lands, 339.-Leases by infants and persons non compos mentis, 341.— Of tenancies from year to year, 343.-In what cases an agreement operates as a demise, 345.-Notice to quit, 346.-Principles of a court of equity in enforcing an agreement for a lease, 350.— How far tenant allowed to dispute his landlord's title, 351. It has been seen in a former part of this volume1, that, as 'p. 17.