(416)* lessee is not *estopped to say that the lessor had nothing at the time of the lease made (м). А., lessee for the life of Lease for years by te nant pur autre vie, is void on death cestui que, though the lessor life. Ludford v. Barber, 1 T. R. 86. So where the plaintiff declared, that afterwards purchases by deed made between her, as attorney for I. S., on the one part, and the the reversion. defendant on the other, she demised a house to the defendant, and that he covenanted to pay the rent to I. S., and then assigned a breach, in the non-payment of the rent, to the damage of the plaintiff (the attorney): on demurrer the court held, that it appearing on the declaration that the lease was void, because it was not made in the name of I. S., whose house it appeared to be (Wilks v. Back, 2 East, 142.), and that the plaintiff only made it as his attorney, there could not be any estoppel; and then the covenant to pay the rent was void, and consequently the plaintiff could not maintain the action. Frontin v. Small, Ld. Raym. 1418. S. C.. Stra. 705. It should also be observed, that it is a rule, that no lease that can operate by way of passing an interest, will operate by way of estoppel. Infra, 45 a. p. 432. 2 Prest. Conv. 137. And where a lease, by indenture, takes effect in point of interest, which interest may be co-extensive with the lease in point of duration, but in fact determines before it, the lease may then be avoided, and the parties are not estopped from showing the facts which determined the lease; as where A. lessee for life of B. makes a lease for years by deed indented, and afterwards purchases the reversion in fee; B. dies; A. shall avoid his own lease; for he may confess and avoid the lease which took effect in point of interest, and de-. termined by the death of B. Infra, 47 b. Treport's case, 6 Co. 15 a. Brudnell v. Roberts, 2 Wils. 143. 1 Selw. 498. 4 Bac. Abr. 191. So it seems that, in an action by a lessor for a breach of covenant, on an indenture of lease, in not repairing, &c. the lessee is not estopped from showing that the lessor was only seised in right of his wife for her life, and that she died before the covenant broken; because an interest passed by the lease. Blake v. Forster, 8 T. R. 487.-[Ed.] (M) Acc. Lewis v. Willis, 1 Wils. 314. Et vid. Taylor v. Needham, 2 Taunt. 278. But nil habuit in tenementis cannot be pleaded to an action for use and occupation, Lewis v. Willhs, supra; nor can it be given in evidence in this action. Cooke, Clerk v. Loxley, 5 T. R. 4. Et vid. Brooksby v. Watts, 1 Marsh. 38. 6 Taunt. 333. Neither will a defendant, who has obtained possession under the plaintiff, be permitted to show that the plaintiff's title has expired, unless he solemnly renounced the plaintiff's title at the time, and commenced a fresh holding under another person. Proof of payment of rent to a third person claiming title is not sufficient, without a formal renunciation of the plaintiff's title. Balls v. Westwood, 2 Camp. 11. But where a tenant by mistake, or misrepresentation, pays rent to a person not entitled to demand it, he will not be precluded by such payment from giving evidence, on a plea of non tenuit in replevin against the supposed landlord, to prove that the latter is not entitled to the rent. Rogers v. Pitcher, 1 Marsh. 541. And it has been determined, that to an avowry for rent the tenant may plead payment of a ground rent to the original landlord, on the principle that the ground rent was a prior charge on the land. Sapsford v. Fletcher, 4 T. R. 511. So he may plead payment of an annuity, secured out of the lands demised previously to the demise to him, for the arrears of which the grantee of the annuity had threatened to distrain; for a payment to a party having a prior charge on the land, and threatening to distrain if that be not satisfied, will be considered as a payment to the immediate landlord. Taylor v. Zamira, 2 Marsh. 220. And it seems that, in such case, if the sum paid by the tenant exceeds the rent due to his landlord, it will create an assumpsit on the part of the landlord to repay him such excess, as money paid to his use. Per Burrough, J. Id. 226. Note, that the action for use and occupation is given by stat. 11 Geo. 2: (417)** B., makes a lease *for years by deed indented, and after purchases the reversion in fee; B. dieth, A. shall avoid his own lease, for he may confess and avoid the lease which took effect in point of interest, and determined by the death of B. (N). But if A. had nothing in the land, Lease for years by one having no interest, but and made a lease for years by deed indented, and after who afterwards purchases the land, is good purchase the land, the lessor is as well concluded as the lessee to say, that the lessor had nothing in the land (21); and here it worketh only upon the conclusion, and the lessor cannot confess and avoid, as he might in the other by estoppel. case. So where a man takes rendering rent : (z) If a man take a lease of his own land by deed ina lease of his own land, dented, reserving a rent, the lessee is concluded. (a) secus as to a lease of But if a man take a lease of the herbage of his own land the herbage. 8 H.4.7. (a) Resolved Pasch. 2 Eliz. in Communi Banco. (Cro. Cha. 110.) by deed indented, this is no conclusion to say, that the lessor had nothing in the land, because it was not made of the land itself: (b) but if a man take a lease for years of his own land by deed indented, the estoppel doth not (6) Mich. 31 & 32 El. continue after the term ended (22). in Communi Banco, adjudged in London's case. (418)* * For by the making of the lease, the estoppel doth Estoppel determines by the ending of the term. grow, and consequently by the end of the lease, the estoppel determines (23), (c) and that *part of the inden (c) 38 H. 6. 24, *48 a. (21) "Et videtur, that by purchase of the land, that is turned into a lease in interest, which before was purely an estoppel. Vid. tamen, P. 3 Car. C. B. Crook, n. 2. Isham and Morris." Hal. MSS.See Cro. Cha. 109.- [Hargr. n. 11. 47 b. (307).] (22) "Vid. 4 H. 6. 7. If dís seisee makes lease for years by in denture to disseisor, he shall not have assise during this lease." Hal. MSS.- [Hargr. n. 12. 47 b. (308.)] (23) "30 E. 3. 21. Vid. 14 H. 6. 22. per curiam. But if it be estoppel by matter of record, as by fine, &c. it continues after. 2 Ε. 4." Hal. MSS.-[Hargr. n. 13. 47 b. (309).] c. 19. s. 14, whereby it is enacted, that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant, in an action on the case, for the use and occupation of what was so held or enjoyed; and if, in evidence on the trial of such action, any parol demise, or any agreement (not being by deed), whereon a certain rent was reserved, skail appear, the plaintiff in such action shall not therefore be nonsuited, fut may make use thereof as an evidence of the quantum of the damages to be recovered. See post, Chap. 54.-[Ed.] (N) In Gilman v. Hoare, 1 Salk. 275, Holt. C. J. observed, that the reason of this case was, because tenant for life has a freehold; which is ture which belonged to the lessee, doth after the term ended belong to the lessor, which should not be if the estoppel continued (o). 43 b. 3. By whom leases may #44 a. 1 Elız, not printed When Littleton wrote, many persons might make leases for years, or for life or *lives, at their will and pleasure, be made. which now cannot make them firm in law. And some persons may now make leases for years, or for life or lives (observing due incidents), firm and good in law, who of themselves could not so do when Littleton wrote, and this by force of divers acts of parliament (d); as (d) 32 H. 8. cap. 28. namely, 32 H. 8, 1 Eliz. 13 Eliz. and I Jac. Regis. of but in the Abridge which statutes one is enabling, and the rest are disabling ment. 13 Eliz. cap. 10. 18 Eliz. cap. 6. When Littleton wrote, bishops with the confirmation of 1 Jac, cap. 3. the dean and chapter, master and fellows of any college, deans and chapters, master or guardian of any hospital and his brethren, parson or vicar with the consent of the patron and ordinary, archdeacon, prebend, or any other body politic, spiritual, and ecclesiastical (concurrentibus hiis quæ in jure requiruntur), might have made leases for lives or years, without limitation or stint. And 5 Co. 14. case de Ee so might they have made gifts in tail or states in fee at clesiastical Persons. their will and pleasure, whereupon not only great decay College case. L'Eves of divine service, but dilapidations and other inconve-que de Sarum's ease. niences, ensued, and therefore they were disabled and (1 Sid. 162.) restrained by the said acts of 1 Eliz. 13 Eliz. and 1 Jac. Regis, to make any state or conveyance to the king at all, or to the subject; but there is excepted out of the restraint or disability, leases for three lives, or one-and 11 Co. 66. Magdalen 10 Co. 60, 61. a greater estate, and the lease will not require any estoppel, if the life endure.-[Ed.] (O) That a lease for years may operate as to part by estoppel, and as to the residue by passing an interest, see Gilman v. Hoare, 1 Salk. 275. But it is a rule, that estoppels ought to be mutual, otherwise neither party is bound by them; therefore if a man takes a lease for years of his own lands from an infant or feme covert by indenture, this works no estoppel on either part, because the infant or feme covert, by reason of their disability to contract, are not estopped. Post, 352 a. Cro. Eliz. 37.700. A lessor is not estopped by his deed from going into evidence to show that a cellar, which is situate under the demised premises particularly described, was not intended to be demised. Doe, d. Freeland v. Bent, 1 T. R. 701. See further as to estoppel, post, 352 a. Book III. Chap. 6, Of Pleading.-[Ed.] (Cro. Cha. 16. 47. 50. appear. 134. 4 Mod. 16. Cro. Cha. 48. Cro. (419)* twenty years, with such reservation of rent, and with such other provisions and limitations, as hereafter shall Also they may make grants of ancient offices of necessity with ancient fees, concurrentibus hiis quæ in jure requiruntur, for those grants are not within the statute of 32 H. 8. but by construction, they are not restrained by the statutes of 1 Eliz. and 13 Eliz. because these ancient offices be of necessity, and with the ancient fees, and so no dimunition of revenue (24). By stat. 32 H. 8. There be three kinds of persons that at this day may tenants in tail may make leases for three lives, &c. in such sort as hereafter make leases for three lives or 21 years, so as is expressed, which could not so do when Littleton wrote, to bind their issue; and ceclesiastics, seised jure ecclesiæ, so as to bind their successors ; viz. First, any person seised of an estate tail in his own right. Secondly, any person seised of an estate in fee-simple in the right of his church. and husband and wife, Thirdly, any husband and wife seised of any estate of seised jure uxoris, &c. so as to bind her inheritance in fee-simple or fee-tail in the right of his and their heirs. (24) "Vid. 29 Eliz. Case of the Bishop of Chester, who had anciently used to have a counsel who had a fee. This grantable by the bishop with consent of dean and chapter. Nota, though it be not an office of time which, &e. yet grantable, if of necessity, as in the case of the Bishop of Gloucester, founded within time of memory. M. 1 Car. C. B. Crook, n. 8. Cook and Young. Vide that it is holden, that though it be a new office, yet if necessary, and the fee is reasonable, being confirmed, it shall bind the successor; and vide the grant of ancient office and fee, with the addition of a new fee, which notwithstanding seems good, because the office is ancient. M. 2 Car. C. B. Crook, n. 7. Gee's case. If it had been usual to grant an ancient office to one only, a grant to two is not good. But if it has been once granted to two or granted in reversion before the statute 1 Eliz., then it shall be intended to have been usually so granted, and such grant to two, or in reversion, shall bind the successor. T. 8 Car. B. R. Crook, n. 2. Walker and Lamb, M. 8 Car. B. R. Crook, n. 19. Young and Steele, concerning the official and commissary of the Bishop of Lincoln, and the register of the Bishop of Rochester." Hal. MSS. Ley. 75. is contrary to Gee's case, cited by Lord Hale. See further as to the grant of offices by ecclesiastical persons, New Abr. Offices, D. See also in Burr, part 4. vol. 1. page 219. the case of Sir John Trelawney and the Bishop of Winchester, in which the court held, that an office and fee which existed before the 1st of Eliz. are not within the restraint of that statute, but that they may be granted as before the statute, and that the utility or necessity of the office is not more material since than it was before[Hargr. n. 1. 44 a. (255).] * wife, or jointly with his wife before the coverture or after, viz. the tenant in tail, by deed, to bind his issues in tail (r), but not the reversion or remainder; the bishop, &c. by deed, without the dean and chapter, to bind his successors; the husband and wife, by deed to bind the wife, and her and their heirs (25); and these are made good by the statute of 32 H. 8. which enableth them thereunto. (420)* But to the making good of such leases by the said Circumstances requi statute, there are nine things necessarily to be observed site to these leases. belonging to them all, and some other to some of them in particular. 5 Co. 6. Seig. Mount First, the lease must be made by deed indented, and joye's case. (3 Lev not by deed poll, or by parol (26). Secondly, it must be made to begin from the day of the making thereof, or from the making thereof (27). 438. Cro. Ja. 94. 458.) *44 b. *Thirdly, if there be an old lease in being, it must be surrendered (28) or expired, or ended within a year of 5 Co. 2. Elmer's caso (25) "Quoad leases by husband and wife. Husband and wife seised to them, and the heirs of the body of the husband make lease for three lives, rendering the ancient rent: husband dies: this shall not bind, the wife. Adjudged, because the statute speaks of the wife's inherit ance. H. 14 Eliz. C. B. n. 5. D. D. Husband and wife jointly seised by purchase to them and their heirs; the husband alone during the coverture makes lease, rendering the ancient rent: dubitatur if it shall bind the wife, because the proviso, which requires the wife's joining, speaks only of husband seised in right of his wife, finitur per compositionem. M. 1 Carr. C. B. Crook, n. 15. Smith and Trinden." Hal. MSS.-[Hargr. n. 2. 44 a. (256).] (26) See New Abr. leases, (E. 2.) - [Hargr. n. 3. 44 a.] (27) Vid. 7. Eliz. Dy. 246. Lease for 20 years to begin at next Michaelmas seems good." Hal. MSS - See further as to the time when such leases should begin, and the difference between from the day of making and from the making. New Abr. Leases, (E.) rule 2. and ante, 46 b. p. 408.- [Hargr. n. 4. 44 a. (257).] [See ante, p.408. n.(D).]-[Ed.] (28) "Feme covert tenant for life; reversion in tail; husband surrenders; tenant in tail leases for three lives; the wife dies. Adjudged, that this is a good lease to bind the issue. Sydenham and Cops, cited by Popham. Mo. 783." Hal. MSS. - Hargr. n. 1. 44 b. (258).] (P) In consequence of the statute De donis, all leases made by tenants in tail might have been avoided by their issue, or by the persons entitled to the remainder or reversion; but by the 32 H. 8. c. 28. leases made according to the directions of this statute, will be binding on the issue |