A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

LEASES.

Leases. There be three kinds of persons,* 1.1 that at this day may make Leases for three Lives, which could not do so when Littleton wrote.

• 1. Any person seised of an Estate tail in his own right.
• 2. Any person seised of an Estate in Fee-simple in* 1.2 the right of his Church.
• 3. Any Husband and Wife seised of any Estate of Inheritance in Fee-simple, or Fee-tail in the right of his Wife, or joyntly with his Wife be∣fore the coverture, or after.

If one make a Lease for so many years as he* 1.3 shall live, this is void in praesenti, for the incer∣tainty.

In the eye of the Law, any estate for life be∣ing an estate for free-hold, against whom a prae∣cipe* 1.4 doth lie, is an higher and greater estate then a Lease for years, though it be for a thousand, or more, which are never without suspicion of fraud.

Touching the time of the beginning of a Lease for years; it is to be observed, that is a Lease be made by indenture, bearing date 26 May, to have and to hold for twenty one years, from the date, or from the day of the date, it shall begin on the twenty seventh day of May, if the Lease* 1.5 bear date the twenty sixth day of May, &c. to have and to hold from the making thereof, or from henceforth, it shall begin on the day in which it is delivered; for the words of the Indenture are not of any effect till the delivery, and thereby from the making or henceforth take their first effect. But if it be à die confectionis, then it shall begin* 1.6 on the next day after the delivery, if the habe••∣dum be for the term of twenty one years without mentioning when it shall begin, it shall begin from the delivery, for there the words take effect. If an Indenture or Lease bear date which is void, or impossible, as the 30 day of February, or 40 of March, if in this case the term be limited to begin from the date, it shall begin from the delivery, as if there had been no date at all.

It is true, that every Lease at will must be at the* 1.7 will of both parties, and therefore when the Lease is made to have and to hold at the will of the Lessor, the Law implyeth it to be at the will of the Lessee also; for it cannot be at the will of

the Lessor, but it must be at the will of the Les∣see.

If the Wife of I. S. be great with Child with a Sonne, and a Lease be made untill the issue in the Womb of his Mother come to full age, this is not a Lease for years; for at the time when the Lease is to take effect, it is uncertain when the Sonne shall be born; and by consequence the begin∣ing, continuance, and end of this is uncertain. And when a Lease for years shall be made good by reference, the reference ought to be to a thing which hath expressed certainty at the time of the Lease made, and not to a possible or causuall cer∣tainty. Therefore, if I have rent of 20 s. per annum in fee issuing out of Black Acre, pay∣able* 1.8 continually at the Feast of Easter, and I grant the same Rent to you untill ye shall have received of the same Rent 21 l. in this case you shall have this Rent for 21 years; for this hath re∣ference to the express certainty, viz. the an∣nuall Rent, which is twenty Shillings per annum, untill twenty one pounds be levied of the issues and profits, this is but a Lease at will without livery, for it is not certain, that the Land shall be every year of an annuall value.

If a man hath Mines hidden within his Land,* 1.9 and leaseth his land, and all the Mines within it, there the Lessee may dig for them, for Quando ali∣quis aliquid concedit, concedere videtur & id sine quo ••es ipsa esse non potest.

There must not be a double Lease in being at one time, as if a Lease for years be made accor∣ding to the Statute, he in reversion cannot put but the Lessee, and make a Lease for life, or lives, according to the Statute, nor è converso; for the* 1.10 words of the Statute be to make a Lease for three lives, or one and twenty years, so as one or the

other may be made, and not both.

A Lease of Lands is as good without deed as with deed. But in a Lease for term of life, it be∣hoveth to give livery and seism upon the land, or else nothing shall pass by the grant, because they are called Free-holds.

Notes

• * 1.1

  Lease from the French laisser, lin∣quere, re∣linquere, omittere.
• * 1.2

  Cook on Lit. l. 1. c. 7. sect. 58.
• * 1.3

  Id. ib.
• * 1.4

  Id. ubi supra.
• * 1.5

  Cook 5 Rep. Claytons case.
• * 1.6

  Id. ib.
• * 1.7

  Cook on Lit. u••i supra. sect. 68.
• * 1.8

  Cook 6 Rep. Bishop of Bathes case
• * 1.9

  Cook 5 Rep. Cases of Leases.
• * 1.10

  Cook on Lit. l. 1. c. 7. sect. 58.