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$ 19. There are several other statutes, by which all 1 Eliz. c. 19.
13 Eliz. c. 10. alienations by ecclesiastical persons of those lands, te- i Jac. 1. c. 3: nements, and hereditainents, whereof they are seised in right of their churches, are declared void, except leases for 21 years or three lives, which are called the disabling Statutes.
S 20. The circumstances required by the statute Circumftan. 32 Hen. 8. and the subsequent statutes, to render leases ces required
in these made by tenants in tail, husbands seised in right of their Leases. wives, and ecclesiastical persons, valid and binding on their heirs and successors, are chiefly these.
i Inft. 44 a.
$ 21. ist, All such leases must be by deed indented, and not by deed poll, or by parol. But if the deed be indented, whether it begins with the words this indenture or not, is not material : and, on the other hand, if it be not indented, the calling it an indenture will not make it so.
$ 22. 2d, All such leases must be made to begin from the day of the making thereof, or from the making thereof.
Inft. 44 bi
$ 23. 3d, If there be an old lease in being, it must Idem, be surrendered or ended within one year next after the making the new lease ; and such surrender must be absolute, and not conditional; for then the intention of the statute might easily be evaded by setting up such old lease again, upon breach of the condition.
§ 24. A surrender upon condition, that the lessor should make a new lease within a week after, has been held to be good.
§ 25. The
Wilson v. $ 25. The lessor of the plaintiff being a prebendary Carter;
son of Sarum, brought an ejectment to avoid a lease 2 Stra. 120
made by his predeceffor, as not being conformable to the proviso in the statute 32 Hen. 8. because the sur. render of the former lease was with a condition that if the then prebendary did not within a week after, grant a new lease for three lives, the surrender should be void; whereby, as it was contended for the plaintiff, the old term was not absolutely gone, but the lessee reserved a power of setting it up again. The court after two arguments gave judgment for the defendant, this being within the intent of the statute, which was, that there should not be two long leases standing out against the successor. Here the new lease was made within the week, and from thence it became an absolute surrender both in deed and in law. And the whole was out of the lessee without farther act to be done by him. In the proviso in the statute there was the word ended, as well as surrendered ; and could any one fay the first lease was not at an end? This was no more than a reasonable caution in the first lessee, to keep fome hold of his old estate, till a new title was made to him.
S 26. A surrender in law by the taking of a new lease, either to begin presently, or on a day to come, seems a good surrender within these statutes ; for by taking such new lease, though it be to commence at a future day, the first lease is presently surrendered and gone, and shall not continue good till the day on which the second lease is to commence; but by acceptance of such second lease, the first is immediately
determined, because both leases cannot exist together, and the first cannot be dissolved or surrendered in part, and therefore must be surrendered for the whole.
$ 27. The statute 13 Eliz. c. 11. enacts, that all leases to be made by any ecclesiastical, spiritual, or collegiate persons, or others, within the 13 Eliz. c. 10. of any lands, &c. whereof any former lease for years is in being, and not to be expired, surrendered, or ended, within three years next after the making of any such new lease, shall be void, and of no effect.
§ 28. 4th, The duration of all leases made under 1 Int. 44 b. these statutes must not exceed twenty-one years or. three lives. But leases for fewer years or lives are good, the intention of these statutes being only to abridge the power of making long and unreasonable leases, by reducing them to a determinate number of years or lives, which they should not exceed : but might be made as much under as the party pleased.
§ 29. If a bishop makes a lease for four lives, and 10 Rep. 62 a. one of them dies in the life of the bishop, so that at his death there are but three lives in being, yet the lease will be void against his successor, for as it was originally void by i Eliz, no subsequent event can make it good.
S 30. If a lease be made to A. for the lives of B. Baugh v. C. and D. it is a good lease to one for the lives of Haines,
Cro. Ja. 76. three other persons, and a leasę to three for their lives
is all one within the intent of these statutes : for in both cases three lives are the measure of the estate created, which is all the statutes require.
8 Rep. 69 b.
$31. It appears to be understood that a lease for sixty years, if three lives shall so long live, is good within the statute 32 Hen. 8., for in Whitlock's case it was laid down, that if a man has power to make leases absolutely or generally, as the several persons comprised in the statute 32 Hen. 8. have, and a proviso or restraint comes after, as in that act, that such leases shall not exceed twenty-one years, or three lives, there a lease for ninety-nine years determinable on two or three lives was good, within the first part of the act, and not made void by the last part thereof, because it does not exceed the three lives thereby allowed, though it be not directly for three lives. But a lease for ninety-nine years determinable on three lives could not be supported under the disabling statutes of i Eliz. and 13 Eliz. for the first part of these acts makes void all estates, gifts, grants, &c. and the last part only saves leases for twenty-one years or three lives, so that a lease of this kind being void by the first part of these statutes, and not within the saving of the last part, being neither for twenty one years, nor three lives, shall not bind the successor, There is a quere added to this passage in Bacon's Abridgement,
? Inft. 44 b..
$ 32. 5th, All leases under these statutes must be of lands, tenements, or hereditaments, whereto resort may be had for the rent reserved thereout by distress,
For otherwise the heirs or fucceffors of the leffors would be without any remedy for the recovery of the rent: and therefore these statutes do not extend to things lying in grant, as advowsons, &c. whereout a rent cannot be reserved.
S 33. It has however been enacted by a modern statute, 5 Geo. 3. C. 17., that leases of tithes or other incorporeal hereditaments alone, may be granted by any bishop or eleemosynary corporation, and the fucceffors shall be entitled to recover the rent, by an action of debt, which in case of a freehold lease they could not have brought by the common law.
$ 34. Eth, There is a proviso in the statute 32 Hen. 8. that it shall not extend, “ to any lease of any manors, “ lands, tenements, or hereditaments, which have « not most commonly been letten to farm, or oc“ cupied by the farmers thereof, by the space of “ twenty years next before such lease thereof made.”
S 35. The intention of this clause was to prevent the persons enabled by the statute to demife, from making leases of their mansion houses and demesnes, so as to bind their heirs or successors; as that cire cumstance would have produced a great decay of hospitality.
S 36. Various opinions have been held upon the construction of this clause. The better of them seems Bac. Ab. Tit. to be that it consists of two parts in the disjunctive,
- Lease (E.) and if either of them be observed it is sufficient to