It now remains to be seen, in what cases the defective execution of powers of leasing will be aided by a Court of Equity; for such powers are not held to receive a stricter construction than other powers. A lessee is pro tanto considered to be a purchaser, and relievable on the ground of a meritorious consideration (†). An agreement to execute a power, if the intention is sufficiently apparent, and reduced into writing, will be, in equity, binding upon those in remainder, who will be ordered to execute a formal lease; and this intention may be expressed either by an instrument attempting to execute the power, or by a covenant to execute it, or by a will desiring the remainder-man to create the estate, or by a contract not under seal, or by letters. In a case of mines, already cited, the power authorized a lease for twenty-one years. A lease of lead mines was granted, in 1743, for that period. The lessor warmly encouraged the prosecution of the works, and granted another lease of the same mines to the same lessee in March, 1759, for twenty-six years, with a reservation of one-eighth of the produce. The lessee and a copartner expended upwards of 33,0007. upon the faith of the renewed lease. A bill was afterwards filed, on the part of the remainder-man, for setting aside the last lease, as contrary to the power. The plaintiffs recovered the mine in an action of ejectment; but a bill was filed by the lessee to have the benefit of the lease, as far as it could be warranted by the powers. It was decided by Lord Chancellor Apsley, assisted by Grey, C. J., and Smythe, C. B., that, though the lease was bad in law, and the former lease was not actually surrendered, yet the new lease should be executed in equity. It must be understood that the parties meant to execute it legally. The lessees had laid out many sums in levels, and erecting smelting mills, and it would be monstrous not to give relief. Under a power of leasing, there is a referable priority given (t) Reid v. Shergold, 10 Ves. 370. by a settlement, and a tenant for life had a qualified power of contracting to bind the remainder-man (u). But a defective execution, without any contract to execute a power, will not be aided against the person who made it, though it will bind those in remainder (x). A parol contract will not bind the remainder-man, although it is in part performed by the intended lessor (y), unless the lessee is suffered to improve the estate (z). When the power is attempted to be exercised by a formal instrument, which proves to be defective, the execution will be equally relievable-as, when three witnesses are required, and two only attest; or it is not otherwise executed conformably to the power (a). But if the best rent is not reserved by a lease, or a fine is paid, or the lease is made to begin in futuro, or if the interests of the remainder-man are in any manner prejudiced, and all these acts are at variance with the terms of the power, a Court of Equity will not relieve in cases of contract (b). When a lease, purporting to be made under a power, is void for an insufficient execution, the acceptance of rent by the remainder-man will not operate as a confirmation, but, at most, only as an acknowledgment of a subsisting tenancy from year to year (c). An important act has lately been passed for granting relief against defects in leases under powers. When a lease under any power is invalid by the non-observance or omission of some condition or restriction, or from any other deviation from the terms of the power, and the lessee (u) Campbell v. Leach, Amb. 740; Sug. Powers, Appendix, No. 26. (x) Coventry v. Coventry, 2 P. Wms. 222; 1 Str. 596; Sargeson v. Sealey, 2 Atk. 412; Vernon v. Vernon, Amb. 1; Shannon v. Bradstreet, 1 Rep. tem. Redesdale, 52. (y) Blore v. Sutton, Mer. 237. and last case; Symons v. Symons, 6 Madd. 207. (a) Parker v. Parker, Gilb. Eq. Rep. 168; Cotter v. Layer, 2 P. Wms. 623; Doe v. Weller, 7 T. R. 478. (b) Campbell v. Leach, supra. (c) 6 Geo. 4, c. 16, s. 77; 7 Geo. 4, c. 57. has entered, such a lease shall be considered in equity as a contract for a grant, at the request of the lessee, of a valid lease under the power, except so far as any variation may be necessary under the terms of the power, and all persons who would have been bound by a lease lawfully granted shall be bound by such contract. But no lessee shall be entitled to the variation if the persons bound by the contract are willing to confirm it without variation. When a lease is invalid by reason that at the time the person granting it could not lawfully grant such a lease, and the estate of the grantor shall have continued after the time when such or the like lease might have been granted under the power, the lease shall take effect and be as valid as if it had been granted at such last-mentioned time. When a valid power of leasing is vested in any person granting a lease, and the lease (by reason of the determination of the estate of such person or otherwise) cannot have effect and continuance, independently of the power, the lease shall be deemed to be granted in the intended exercise of the power, although the power be not referred to in the lease. The act is not to prejudice the rights of lessees under covenants for title or quiet enjoyment, nor the rights of the lessor in respect of any breach of covenants on the part of the lessee. The act does not extend to any lease by ecclesiastical persons, or to any possessions of any college, hospital or charitable foundation, or to any lease surrendered or recovered against by reason of invalidity, or where there has been any judgment or decree relating to its validity (d). By an amending act, it is declared that, on or before the acceptance of rent under any invalid lease, if any receipt, memorandum or note in writing confirming the lease is signed by the person accepting the rent, or his agent, the acceptance shall be deemed to be a confirmation as against the person accepting. Where, during the continuance of possession under any invalid lease, the person entitled to (d) 12 & 13 Vict. c. 26. the hereditaments is able to confirm it without variation, the lessee is bound, at the request of such person, to accept such a confirmation, which may be effected by memorandum or note in writing signed by the persons confirming and accepting, or their agents (e). Neither of these acts appear to extend to mere contracts, but only to actual or attempted leases, which are declared to amount to contracts. Assignees of bankrupt and insolvent estates may grant leases under powers limited to the bankrupt or insolvent for the benefit of the estate (ƒ). Powers vested in infants, lunatics, and married women, have already been mentioned (g). SECTION III. LEASES BY ECCLESIASTICAL PERSONS AND OTHERS. The rights of persons in possession of the property of the Church, with respect to mines and minerals, have been already discussed (h).. By the common law, all ecclesiastical persons and all eleemosynary corporations, as masters and fellows of colleges, masters of hospitals and their brethren, if unrestrained by the particular provisions of the founder, might have wholly or partially aliened the possessions of the Church (i). But all leases by corporations sole, as archbishops, bishops, deans, archdeacons, prebendaries, parsons and vicars, required the confirmation of other persons interested in the property, to render them of sufficient power to bind the successor. Thus, the leases of archbishops and bishops required the confirmation of the dean and chapter of their diocese (k); those of a dean, archdeacon or pre (e) 13 Vict. c. 17. (f) Jones d. Cowper v. Verney, Willis, 169; Doe d. Martin v. Watts, 7 T. R. 83; Doe d. Brune v. Prideaux, 10 East, 158; Doe d. Tucker v. Morse, 1 Barn. & Ad. 365. (g) See Sect. 1. (i) Co. Litt. 44 a. (k) 3 Co. 75; 10 Co. 60 a; 2 Co. 39. bendary were to be confirmed both by the bishop and the dean and chapter, in order to bind all parties who might afterwards be interested in the property. Those of a parson or vicar required the confirmation of the patron and ordinary (1). The patronage of a perpetual curacy augmented by Queen Anne's bounty is in the patron paramount, as well as in the rector as immediate patron (m). If the parsonage or vicarage was a donative, the confirmation of the patron alone was sufficient (n); or if the deanery was donative, that of the king only was required (o). When the bishop was the patron of the Church, and was required to confirm, the confirmation of the dean and chapter was also necessary, for the advowson is their parcel of the possessions of the see, which cannot be charged by him alone, so as to bind the successor (p). The leases of the deans and chapters required no confirmation. The confirmation might take place at any time in the lifetime of the parties to the lease, and as well before as after the making of the lease (q). It might even take place after the death of the lessor (r). The powers thus conferred by the common law have, however, been considerably abridged with respect to all ecclesiastical persons. The possessions of the Church can no longer be demised by any ecclesiastical persons, whether with confirmation or not, for a longer period than for three lives or for twentyone years, to begin from the time of making thereof, and for less than the old accustomed yearly rent (s). · But archbishops, bishops, deans, prebends, and all other spiritual persons, except parsons and vicars, may now grant leases upon the following conditions. The lease must be (1) Dyer, 61 b, 106 b, 204 b, 356 a, 356 b; Co. Litt. 300 b, 329, 343 b; Degge, 120. See 1 Sid. 75. (m) Bac. Ab. Leases (G), 2; Doe d. Brammell v. Collinge, 7 Com. B. 939; 18 L. J., N. S., C. P., 305. (n) 1 Roll. Abr. 481; Dyer, 273. (0) Comp. Incumb. 371. (q) Ibid.; Anon., Moore, 66. |