The leases, however, of tenant in tail are aided by the statute 32 Hen. VIII. c. 28, commonly called the enabling statute; (m) by which tenant in tail is permitted to make leases by indenture for twenty-one years, or three lives, which shall bind his issue, though not the remainder man or reversioner. Such leases must, in all points, conform to certain conditions imposed by that statute; thus, by section 2, it is provided, that the act shall not extend, 1. to any leases of lands already leased, unless such old lease be expired, surrendered, or ended, within one year after the making of the new lease; (n) nor, 2. to any grant to be made of any reversion of lands; nor, 3. to any lease of lands which have not most commonly been let for the space of twenty years next before such lease; nor, 4. to any lease to be made without impeachment of waste; nor, 5. to any lease to be made above the number of twenty-one years, or three lives, at the most from the day of making thereof; 6. it is provided, that upon such lease there be reserved yearly to the lessors and their heirs so much yearly rent as hath been most accustomably paid for such lands within twenty years next before such lease; and lastly, it is enacted that the issue or heir in tail shall, after the death of the lessors, have the same remedies against the lessees, their executors and assigns, as the lessors themselves would have had. (0)

In order to bind the issue under the 32 Hen. VIII. it is necessary that the estate tail should be absolutely vested; for where land was given to A. and his wife, and the heirs of the body of the survivor, and they made a lease for twenty-one years, agreeably to the provisions of the statute, such lease did not bind the issue; for the estate tail could not vest until the death of one determined which was the survivor. (p)

(m) Copyhold lands are not within this statute, post.

(n) But by the stat. 4 Geo. II. c. 28, s. 6, where there are underleases the refusal of the under tenants to surrender their leases

shall not prejudice the original parties. Vide infra.

(0) See the particular decisions upon this statute, post.

(p) Lampet's case, 10 Rep. 51. a.

But by the 3 & 4 Wm. IV. c. 74, contingent estates tail may now be barred by deed enrolled in manner prescribed by that statute, and therefore by such means a lease may be made by a contingent tenant in tail binding both on the issue and the remainder men.

lity, curtesy,

and dower.

The estates of tenant after possibility of issue extinct, By tenant tenant by the curtesy, and tenant in dower, though growing après possibiout of the original estate of inheritance, afford them no more than a life interest; such tenants, therefore, stand precisely on the same footing as tenants for life, and are restricted to the like limits in the disposal of their respective lands.

life.

Tenant for life, whether tenant for his own life, or pur By tenant for autre vie, can make no leases to continue longer than the life on which his own estate depends; (unless a special power to that effect be reserved to tenant for life;) for the lease is absolutely determined and void by the falling in of the life. (g)

And such lease, being altogether determined, can never be set up again at law by any act of the remainder-man, as by his acceptance of rent, or allowing the lessee to make improvements after his interest has vested. (r) But if the remainder-man accepts rent, this is an acknowledgment of tenancy from year to year on the terms of the lease; (s) and if the remainder-man has acted mala fide, equity will give relief.(t) B. tenant for the life of C., and he in remainder or reversion in fee, join in a lease for years, this, during the life of C. is the lease of B., and the confirmation of him in remainder or reversion; but after the death of C., then this becomes

(q) Bac. Ab. Leases (I.)

(r) Doe dem. Simpson v. Butcher, Dougl. 50. Jenkins dem. Yate v. Church, Cowp. 482. Roe dem. Jordan v. Ward, 1 Hen. Bl. 97. Doe dem. Potter v. Archer, 1 Bos. and Pul. 531.

(s) Doe dem. Martin v. Watts, 7 T. R. 83. Doe dem. Collins v. Willis, Ibid. 478.

(t) See Blore v. Sutton, 3 Mer. 247. Stiles v. Cowper, Atk. 692. Sudg. Powers, 5 Edit. 375.

the lease of him in remainder or reversion, and the confirmation of B., (t) and there can be no estoppel in this case, because of the several interests which passed from each.

In order to remedy the difficulty of proving the death of cestui que vie, the stat. 19 Car. II. c. 6, ss. 1, 2, enacts, that where persons upon whose lives estates have been granted by copy of Court Roll or Lease shall remain beyond seas, or elsewhere absent themselves in this realm for seven years together, and an action shall be brought by the lessor or reversioner to recover possession of the lands so granted, such persons shall, unless sufficient proof be made of their lives, be accounted dead. Provided, that if such persons shall afterwards be forthcoming, the tenant evicted may reenter the lands, and recover the mesne profits; or, upon proof that cestui que vie died after the eviction, then the tenant may recover the profits arising between the re-entry and the death, sect. 5. And by the stat. 6 Ann. c. 18, ss. 1, 4, persons claiming estates in remainder or reversion, after the death of minors, married women, and others, may, upon affidavit that they believe such minor, &c. to be dead, move the Court of Chancery for the production of such minor, &c., and if the guardian of the minor, or the husband of the married woman, &c., neglect to produce the minor, or to make affidavit of the life, &c., the person claiming the estate may enter thereupon. And by sect. 2, upon affidavit that such minor, &c. is alive and beyond sea, the claimant may send over a person to view them. Provided that if, after claimant's entry, it appear that such minor be still alive, the party evicted may re-enter, and recover mesne profits, or upon proof that the minor, &c. died after eviction, then the profits accruing due between the re-entry and the death, sect. 3. And by sect. 5, guardians, husbands, &c. holding over after the death of such minors, married women, &c. shall be adjudged trespassers, and be liable to an action for the full value of the profits received during the wrongful possession.

(t) Bac. Ab. Tit. Leases. (I.) 2.

On motion made ex parte under this statute on the part of a person entitled in fee, subject to a lease for lives, that the parties claiming under that lease might be ordered to produce the persons on whose lives the lease was holden, the order was made accordingly, upon an affidavit such as the statute requires. (u)

If tenant for life make a lease for twenty-one years, and then he in reversion confirm the lease, and afterwards tenant for life dies, though this at first would have determined by the death of the tenant for life, yet the confirmation has made it good, and unavoidable for the whole term; for the reversioner has thereby made himself a party to the lease: and, though it was originally the lease of the tenant for life, and the confirmation of the reversioner, yet after the death of tenant for life it becomes the lease of the reversioner, and the confirmation of tenant for life. But it would have been otherwise, if the lease had been made for twenty-one years, provided tenant for life so long lived; for the confirmation of the reversioner will not make the lease larger than it was at first. (v)

The diversity between the cases is this, (w) that in the first case the lease being made generally for twenty-one years, nothing appears to the contrary but that it was a good lease for that time absolutely; for the death of the lessor, which would determine it sooner, does not appear on the lease itself; then when the reversioner, who alone could take advantage of the implied limitation, thinks fit to waive it, and confirms the lease as it was made at first for twenty-one years absolutely, this makes it his own lease, for so much of the time as would have fallen into his reversion by the death of the

(u) Ex parte Whaley, 4 Russ. 561. (v) Co. Lit. 45. a. Bac. Abr. Leases (I). Vide Friend". Eastabrook, Bl. Rep. 1152, where there being husband tenant for life remainder to wife for life, husband and wife having joined in a demise

(which it was agreed they might do), Gould, J., said, that this could not operate as a confirmation; for the wife's confirmation of the husband's act would be nugatory. 1. Bac. Ab, Tit. Leases. (I.) 2.

(w) Bac. Ab. Tit. Leases. (I.) 2.

By tenant for years.

By tenant at will.

tenant for life; but the death of the tenant for life being made the express limitation and circumscription of the twentyone years in the lease itself, no confirmation of that lease so limited can enlarge it to extend beyond the life of the lessor, that being the express determination affixed to it.

Where a lease is executed by tenant for life, in which the reversioner, being then an infant, is named, and before his execution of it tenant for life dies, the lease is absolutely determined, and no subsequent execution by the reversioner can re-establish it so as to bind the lessee. (w)

Where tenant for life is created, with power to make leases for lives or years, his leases, provided they accord with the terms of the power, will, of course, be binding upon the remainder-man. (x)

Tenant for years may assign his whole term, or part with only a portion of it by way of lease. And so a tenant for one year, or for a less period, provided it be fixed and certain, or from year to year, has the same power of assigning or underletting, unless some covenant to the contrary be contained in the original lease. And even if tenant for years make a lease for life, it seems that this will be good for the life, if the term of the tenant for years last so long; though if he make livery of seisin upon it, this is a forfeiture of the estate for years. (y)

But strict tenant at will, who holds on the mutual will of himself and his lessor, can never part with his estate in favour of a third person for the very act of letting in a stranger would be a determination of his own will; and if the lord accept his nominee, such nominee's entry will be the destruction of tenant at will's estate. (*)

(w) Ludford v. Barber, 1 T. R. 90.

(x) See post, as to the form of these leases.

(y) Shep. Touch. 268.

(z) Jones v. Clerk, Hardr. 47. Dinsdale v. Iles, 2 Lev. 88. S. C. Sir T. Raym. 224. 1 Ventr. 247. Birch v. Wright, 1 T. R. 382.