lutely void by the determination of his estate, they are incapable of confirmation; although, where the remainderman or reversioner, after the determination of the life-estate, knowing the defect in the lease, accepts rent of the lessee, and suffers him to make improvements, a court of equity has sometimes decreed him to execute a new lease to the tenant. (2 Th. Co. Lit. 433, n (C. 1); Stiles v. Cowper, 3 Atk. 692.)

It must be noted, on the other hand, that it is said. that if husband and wife make a lease of the wife's lands, not in pursuance of 32 Hen. VIII, c. 28 (which we have seen does not exist in Virginia), it is voidable only by the wife, after the husband's death, and therefore her acceptance of rent, &c., then, will amount to a confirmation. (2 Th. Co. Lit. 433, n (C. 1); Bac. Abr. Leases, (C.); 2 Lom. Dig. 127; Doe v. Waller, 7 T. R. 478.)

A condition avoiding a lease upon a contingency (e. g. the lessee's non-payment of rent), according to the modern authorities, does not render the lease absolutely void, ipso facto, though it be expressly so declared; for that would enable the lessee, by his own. misconduct, to determine the lease at his pleasure; but it leaves the lessor the option of entering for the breach of condition, or not, at his will; and the lease being thus voidable only, and not void, it is confirmed by the lessor's subsequent acceptance of rent, or other unequivocal waiver of the forfeiture. (2 Lom. Dig. 129; Dudley v. Estill, 6 Leigh, 562; Jones v. Carter, 15 M. & W. 718.)

When the tenant commits a breach of the covenant or condition, whichever it may be, to pay the rent punctually, the courts, both of law and equity, have long come to consider any clause or right of re-entry therefor, as inserted in the lease merely for the landlord's security, and have been accustomed to interpose in favor of the tenant, or his assignee or mortgagee, upon his satisfying the rent, and any damages sustained by the landlord, not permitting the latter to retain possession of the premises after the purpose in view is thus achieved. (2 Lom. Dig. 129.) And we have seen that such an equity of redemption in respect to re-entry is very amply provided for by statute in Virginia. (V. C. 1873, c. 134, § 17 to 20; Ante, 259 & seq; 238-'9.)

8". Who may be Lessees.

All persons whatever, though they be idiots, luna

.

tics, infants, persons drunken, or married women, may be lessees, because it is presumed to be for their benefit. Upon the removal of their disabilities, however, such parties may avoid the lease, or may confirm it; and if, after their disabilities ceased, they continue to occupy the premises, or otherwise signify their assent, the lease then becomes binding upon them. (Ante p. 583; 2 Lom. Dig 129.)

An alien's disabilities at common law, touching the holding of lands, and their entire removal with us in the case of alien friends, has been already explained. (Ante, p. 582.) By the common law, he may take a lease of lands of any sort, as he may take a conveyance in fee; but in either case the estate which he acquires is liable to be immediately escheated to the crown or commonwealth. If, however, an alien friend be a merchant, the common law permits him to lease a house for carrying on his trade or merchandise, which he may continue to occupy without disturbance. But if he leaves the country, or dies, or it seems if he ceases to occupy the premises, he can transmit them to no one, but they escheat to the crown or commonwealth. See V. C. 1873, c. 4, § 18. 9. Covenants contained in Leases.

In respect to covenants contained in leases, there are two prominent distinctions to be noted; namely, (1), The distinction between covenants implied, and covenants express; and (2), The distinction between covenants which run with the land, and bind the assignees, and covenants which do not run with the land.

On the part of the lessor, where the lease is for life, a warranty of title is implied, by reason of the tenure, from the use of the word dedi, or give; and where the lease is for years, a similar warranty is implied, by reason of the contract, from the use of the words grant, lease, or demise. (2 Th. Co Lit. 252 n (K), and Butler's note to same; Id. 254.) And upon these implied warranties of title, not only shall the tenant be discharged from payment of rent upon eviction, but he shall recover of the lessor damages for the loss of the land. (2 Th. Co. Lit. 252; Butler's note.)

On the part of the lessee, the words "yielding and paying" the stipulated rent, although they are the words of the lessor, yet by his acceptance of the lease, they constitute an implied engagement by the lessee to pay the rent, namely, (supposing no other time to be appointed), at the end of the year, or of

any other period, for which it is reserved payable; and on that engagement the lessor may found an action of debt, or any other appropriate action for the rent. (2 Th. Co. Lit. 252, Butler's note.) This implied obligation, however, continues, it is said, no longer than the lessee retains the premises, ceasing if he assigns them; whilst an express covenant to pay rent would bind the lessee indefinitely, whether he assigned or not. (1 Washb. Real Prop. 326, 333–24.)

Covenants which run with the land, are such as pass with the land, and with the reversion respectively, into whose hands soever either may come. They are such covenants as concern the land demised, and concern the owner of the reversion, in respect of such ownership. Among the covenants which thus run with the land, are all such covenants as we have seen the law implies from the usual terms of leases, such as "lease and demise," "yielding and paying," and the like. Also, all covenants for the quiet enjoyment; covenants to pay rent; to insure; to repair; to reside on the premises; to pay the taxes assessed on the premises, &c. (1 Washb. Real Prop. 330–231.)

On the other hand, if the covenant be such that it would be beneficial to the tenant on the one side, or to the reversioner on the other, without regard to the continual occupancy of the land by the one, or the continued ownership. of the reversion by the other, it is a mere collateral covenant which does not run with the land. (1 Washb. Real Prop. 331; Vyvyan v. Arthur, 1 B. & Cr. (8 E. C. L.), 410; Vernon v. Smith, 5 B. & Ald. (7 E. C. L.), 11.)

It is worth while to remark that, if the subject matter of the covenant which runs with the land be not in esse at the date of the lease, the assignee is not charged with the covenant, unless he be named; whilst if it be in esse at the date of the demise, he is chargeable, whether named or not. (1 Washb. Real Prop. 332; Congleton v. Patterson, 10 East. 138). But in Virginia, by statute, assigns are always included, whether named or not. (V. C. 1873, c. 113, § 9.)

It is proper in this connexion again to refer to the statute corresponding to 31 Hen. VIII, c. 13, and 32 Hen. VIII, c. 34, affording mutual redress upon conditions and covenants contained in leases, to the assignee of the reversion against the lessee and his assigns, and to the lessee and his assigns against the assignee of the reversion and his assigns (See V. C. 1873, c. 134, § 1, 2; Ante p. 236-'7.)

Where the premises leased are of much value, and especially if the lease is to be of long duration, it is prudent and usual to introduce such express covenants as will plainly set forth, and duly guard the rights of the parties respectively The most usual covenants contained in well-drawn leases are the following, subject, however, to an almost infinite diversity, as the views and wishes of the parties vary:

(1), Covenant to pay the rent, specifying the times of payment.

(2), Covenant to pay the taxes as assessed on the premises by public authority.

(3), Covenant not to assign, nor to underlet, without leave in writing.

(4), Covenant to leave the premises in good repair. (5), Covenant that lessee shall obtain possession of the land, and enjoy quiet possession of his term.

(6), Covenant that lessor may re-enter for default in payment of rent, or breach of any of the covenants by lessee.

(7), Covenant that lessee will cultivate the premises in the manner prescribed.

(S), Covenant that lessee shall not be liable for waste or destruction of the premises, not occasioned by his own default.

(9), Covenant that lessee shall not be liable to pay rent, if the buildings on the premises are totally destroyed without his default, or in case of partial destruction, that the rent shall be abated, until they are rebuilt by the lessor.

For the expression of the first six of these covenants in brief form, the statutes of Virginia make judicious provision. (V. C. 1873, c. 113, § 17 to 21.) 10". The Form of a Lease.

Our statutes have provided a form for a lease, (omitting the covenants, however,) which although expressly declared to be not to the exclusion of others, (V. C. 1873, c. 113, § 8,) may yet be consulted with advantage, as illustrating the mere frame-work of such instruments. (See V. C. 1873, c. 113, § 4.)

In conclusion of the subject of leases, let it be observed, that in Virginia, a contract for a future lease, for more than one year, must be in writing, signed by the person to be charged, or his agent, in pursuance of the statute of parol agreements (V. C. 1873, c. 140, § 1); and a lease in presenti, for life, or for a term exceeding five years, must be by deed or will, ac

cording to the statute of conveyances. (V. C. 1873, c. 112, § l.)

4m. Grant.

A grant is the regular method by the common law, of transferring the property of incorporeal hereditaments, or of such things whereof, from their nature, livery cannot be had. For which reason, as all corporeal hereditaments, such as lands and houses, are at common law said to lie in livery, so the others, as commons, rents, ways, franchises, reversions, &c., are said to lie in grant. The operative technical words of a grant, are dedi et concessi, hath given and granted, but any other words that show the intention of the parties will have the same effect, such as aliene, limit and appoint, bargain and sell, &c Even where A granted and agreed that in consideration of a certain rent, B should have a way over his lands, it was held to be a grant of a right of way, and not a mere covenant for enjoyment. (2 Bl. Com. 317; Holmes v. Sellers, 3 Lev. 305.)

A feoffment, as we have seen, might at common law be made by parol only, the operative ceremony designed to give certainty and notoriety to the transaction being livery of seisin; but a grant required a deed always, even at common law; a deed, (as livery is impossible) affording the only sufficient evidence of what was done. (2 Lom. Dig 117; 2 Th. Co. Lit. 356.)

Whilst remainders, reversions, and incorporeal hereditaments may be conveyed by grant, a bare right or possibility is not, at common law, in general capable of being transferred at all; although in Virginia, by statute, any interest in or claim to real estate may be disposed of by deed or will. (V. C. 1873, c. 112, § 5). Nor can a person grant or charge what he has not; and, therefore, if a man grants a rent-charge out of Blackacre, when in truth he has nothing therein, and afterwards purchases it, he shall hold it discharged from the grant. (2 Th. Co. Lit. 402, n (Q. 1); 2 Lom. Dig. 117.)

It should be noted, that at common law, in granting a reversion or remainder, the attornment of the tenant is indispensable, agreeably to the feudal policy which did not permit a transfer of the relation of lord and vassal by either party, without the other's consent. This doctrine has almost wholly disappeared in England, under the provisions of the statutes of 4 Anne, c. 16, and 11 Geo. II, c. 19, which in substance, we have in Virginia; our statute enacting that a grant or a devise of a reversion or remainder shall be good without