The Law of Landlord and Tenant: to which is Added an Appendix of Precedents

cause a confirmation being nothing but an assent under the hand and seal of the party confirming, such assent in this case sufficiently appears by his assigning over the lease to another. (a)

Another difference observable in the manner of confirming such leases as we are treating of, is, as to their duration, or continuance : for, if a parson make a lease for twenty-one years at this day, and the patron and ordinary confirm his estate therein for seven years, or (after reciting the lease) "not beyond" that term, yet is the estate or lease well confirmed for the twenty-one years; for when they confirm the estate of the lessee, that is intire, and cannot be divided. (a)

As to the estate which they who make such confirmation ought to have, to make the lease effectually binding upon the successors, this regards chiefly the patron, whose advowson or right of patronage, being a temporal inheritance, and considered as such, is to be governed by the same rules as other temporal inheritances are: his confirmation, therefore, being in nature of a charge upon the advowson, is to be directed by the estate which he hath in the advowson, and can continue no longer than that endures. (b)

If, therefore, the patron had a conditional estate in the advowson, and he confirm a lease of the parson's, and afterwards the condition be broken, this defeats also his confirmation, so that the succeeding incumbent shall not be bound by it. So, if a church be full of a parson, and afterwards another is made parson, and he makes a lease for years, which is confirmed by the patron and ordinary, yet the lease is void; because he who made it was not parson, the church being full before. (b)

As to the time of confirmation, generally speaking, it is not ma terial whether it be before or after the making of the lease, which is to be confirmed, so it be made in the life-time of the parties who make the lease: for the confirmation is but an assent or agreement by deed, to the making such lease or grant, and not a confirmation of the estate itself. (b)

Thus, where a bishop made a lease on the second of May, which was confirmed the third of May, and sealed the fourth of May, this was held a good confirmation. (c)

Yet it hath been holden on the contrary, that if a confirmation be

(a) Bac. Abr. tit. Leases. (G. 2.)

(b) Ibid. (G. 3.)

made and delivered before the grant or lease be confirmed, that this is not a good confirmation; and though, after the grant or lease, the deed of confirmation be delivered again, yet that will not make it good; for that it was a deed by the first delivery, and the second delivery will not make it good as an assent, because the assent ought to be by deed, and the first delivery was void; but that confirmation may be made before the grant or lease be confirmed, the other cases are express. (a)

If a bishop, parson, or any other sole ecclesiastical corporation, make a lease for years, which needs confirmation, his confirmation ought to be made in the life and during the incumbency of the lessor, for after his death, resignation, deprivation, or other amotion, the lease is become void for want of confirmation; and then, confirmation made after cannot revive it, though it be made in the vacation before any successor comes in. (b)

But if a parson make a lease for years, which is not confirmed by the bishop or patron, then in being, but by the succeeding bishop and succeeding patron, this is a good lease, and shall bind the successor. (b)

A building lease was made of church lands by a deceit put upon the Court of Chancery by the lessor, who took a large fine from the lessee, though nothing of that was mentioned in the proposal laid before the master. The executor of the lessor was decreed to refund the money, to be laid out in a purchase, for the benefit of the successors, but the lease was allowed to stand good, because it did not appear that the tenant was privy to the imposition upon the Court. (c)

A bishop by covenanting to pay all charges, does not subject himself to pay land tax, because he cannot bind his successors Secus, in the case of an individual, who can bind his heirs. (d)

In the case of leases from colleges and ecclesiastical bodies, if the lessee in the new lease takes in the right of him who had the old one, he must be subject to all the equity to which the original lessee was liable. (e)

(a) Bac. Abr. tit. Leases. (G. 4.)

(b) Ibid. (G. 3.) 4.

(d) M. of Blandford v. Duch. of Marlborough, 2 Atk. 542. or Bp. of Oxon v

199.

(e) Edwards v. Lewis, 3 Atk. 538

SECTION XII. Of Leases by Trustees of Charities.

Leases of charity lands are under the peculiar cognizance of the Court of Chancery, and where a lease is made by trustees at an undervalue, by collusion between them and the lessee, the Court can make a decreee not only against the trustees, but also against the lessee for the surplus value. (a)

The mode of granting leases of charity lands is sometimes prescribed by the founder, as that the term shall not exceed twenty-one years, that no fine shall be taken, &c. and then the terms of the power must be strictly pursued: and sometimes power is given to the trustees to make leases generally, in which case they have a power both in law and equity, either to take fines or reserve rents, as is most beneficial for the charity. (a) Where there is no power, the trustees must be guided by the general principles of the Court, which will take care that a reasonable discretion is exercised; (b) and therefore a lease for ninety-nine years of a charity estate, a farm, as a husbandry lease cannot stand without proof of a consideration shewing that it is fair and reasonable, and for the benefit of the charity. (b)

Where the rules of the foundation directed that no lease should be granted for more than twenty-one years, and that at the old rent, taking a fine of two years' value; a lease for twenty-one years at the old rent, with a covenant by repeated renewals to make it up sixty years, was decreed upon certain conditions, to be confirmed for twenty-one years from the last renewal; but the covenant for renewal was declared void, as rendering the lease no less prejudicial than an actual lease for sixty years. (c)

In the constitution for founding an hospital, it was ordained that no lease should be made for above twenty-one years, and that at the old rent, and that not above three years' rent should be taken for a fine. Though the tenant of the hospital lands is entitled to a beneficial lease, upon renewal, yet this constitution is not to be followed according to the letter; but as times alter and the

(a) Highmore on Mort. 449.

(b) The Attorney General v. Owen. 10 Ves. 555. Attorney-General v. Brooke, 18 Ves. 326. Attorney-General v. Wil

son, Id. 518. Attorney-General v. Hotham, 1 Turner, 209.

price of provisions increases, so the rent ought to be raised in proportion. (a)

A college restrained by its constitution from making leases, other than for twenty-one years, at a rack-rent, made an entry in their audit-book, recommending it to their successors to renew a particular lease at less than the rack-rent, the tenant having made great improvements. The Court refused to decree the renewal, censuring the parties who had signed the order for a breach of the college statutes. (b)

A decree having been made for granting a lease of charity lands to J. S. (who had been at great expence in recovering those lands,) for ninety-nine years, or three lives, at a rent of one third the then improved value, and to be perpetually renewed without fine. It was decreed the lease should be renewed toties quoties without fine; but the rent not to be computed according to the value of the land at the time of the decree, but according to the value when the lease should be renewed from time to time. (c)

Where long leases of charity lands have been procured upon terms very inadequate to their fair value, the Court has, in several instances, interfered to annul them, and to bring the lessees to a just account of the rents and profits. (d)

A lease of charity estates by the trustees for a long term is not, however, ipso facto void; its validity must depend on all the circumstances of the transaction; and the difficulty of ascertaining those circumstances, and of restoring the lessee to his original situ ation after the lapse of many years, is an objection to the setting aside such a lease in equity. (e)

An alienation for ninety-nine years of a charity estate, if it be a mere husbandry lease and without consideration, is a lease which the Court will not permit to stand, unless it is shewn to be fair and reasonable, and for the benefit of the charity. (f) A long lease of a charity estate is primâ facie a breach of trust, and a proof of the circumstances that make it a provident administration is thrown on

(a) Watson v. Hemsworth Hospital, 2 Vern. 596.

(b) Taylor v. Dulwich Hospital. 1 P. Wms. 655. Highmoor on Mortm. 473. (c) Attorney-General v. Smith, 2 Vern.

746.

(d) The Attorney-General v. Green. 6 Ves. 452.

(e) Attorney-General v. Warren, 1 Wils. Chan. Rep. 387.

(f) The Attorney-General v. Green. 6 Vez. 452.

those who take such a lease. (a) Therefore, trustees of a charity cannot in general, unless specially empowered, grant a lease for seventy years, except for the purpose of building; (b) for a case may occur in which the property cannot be made beneficial without building, and the trustees may have no fund.

In 1715 the trustees of a charity granted a lease of lands, theretofore let at 311. per annum, for nine hundred and ninety-nine years, in consideration of 500l. to be laid out in improvements, and of 4l. per annum additional rent. The Court considered this to be a sort of perpetuity, destructive to the charity estate, and therefore decreed the lease to be given up; but as the tenant had lately laid out 6007. in improvements, it was ordered that he should have just allowances made him in the account which was directed. (a)

It is laid down in a recent case, (c) that neither a lease of charity land for ninety-nine years, as a mere husbandry lease, upon terms and at a rent adapted to a lease for twenty-one years; nor a building lease of nine hundred and ninety-nine years upon an penditure, commensurate to a term of ninety-nine years, can be supported.

But a lease of charity lands for eighty years, was supported as to the interest of a sub-lessee, who had given a fair consideration, and had no notice, except that the estate belonged to a charity; (c) the Court observing that its feelings upon the abuse of a charity estate must not carry it beyond what is just, even against those who are guilty, much less against other persons; and upon that ground the decree should be mollified with regard to the interests of sub-lessees having given a fair consideration; merely directing. them to pay the rent to other persons than those to whom they had contracted to pay it. The interests of those persons may be very fair, as between them and those from whom they take; and the relief in these cases is to be adapted to the conduct of the parties, as the Court finds them respectively to have acted fairly or not, towards the trust.

Lease of a charity estate will be set aside for undervalue if considerable; but an underlease at a fine, was held not to be con

(a) The Attorney-General v. Green. 6 13 Ves. 565. Vez. 452.

« Previous Continue »

Books