The Sun.
London, England, 1822-03-04 00:00:00

of Justice must judge upon contracts concerning them, as they
would on contracts of any other species.
My Lords, I think a great deal of the argument in this case
has been founded on a misapprehension of the state of the pro-
perty, and it is clear that the persons who found this Special
verdict did not apprehend the real state of the property, for they
found that William Galway made a lease for years, and having
made a lease for years, the' lessee became possessed of the( re-
version belonging to William Galway and his heirs, according
to law, "and the said jurors further, upon their oath, say that
the said William Galway, being so seized of the rent and rever-
sion of the lands and tenements, made his will." Now William
Galway was seized of the freehold of the lands ; he was seized
of the immediate freehold, and his will operated upon the free-
hold ; this finding, therefore, is very inaccurate in that part of
it, and that inaccuracy seems to have run through the whole of
the argument upon the subject of this lease. William Galway
had the freehold, that freehold subject to a legal interest which
he had granted out of it ; lie was seized of the freehold, and
that was a rent incident not to a reversion, but a rent incident
to a freehold. My Lords, • I apprehend, therefore, that when
he made his will he devised the immediate freehold, and the
freehold passed by his will subject to the lease for years.
My Lords, having devised this estate to his son for life, and
then to his first and other sons in tail, the son was tenant fbr
life of that freehold which had remained in the father ; the son
was tenant in tail of that freehold which was one entire estate
to which the rent was incident. My Lords, under these circum-
stances, the father and the son came to an agreement ; the
father had made a lease not warranted under the power which
he had ; but the son agreed to confirm that lease, and subject to
that confirmation, to make a new settlement of the estate, but
in making that new siettlement, a power was reserved to him-
self' and his father jointly, to operate upon the estate in differ-
ent ways. In giving construction to the words used in creating
the power, I apprehend it must always be considered what was
the intent with which the power was given; and for the purpose
of considering that, it must be considered by whom the power
was given, to whom, and for what purpose. •
Now, my Lords, the power here given is given by John and
Edward Galway, jointly; they
.both concurred in giving the
power; they had the power to give it in any form they thought
fit ; the power is given to them jointly ; the purpose for which
it is given is manifest; the power given is to make leases, re-
serving the ancient rent, with a covenant for perpetual renewal,
that is, a power of alienation necessarily in its nature, becauSe
no man will give a lease reserving the ancient rent, with a cove-
nant.for perpetual renewal, but upon receiving a fine equivalent
to the value of the estate which he so grants under the cove-
nant for perpetual renewal during the lives for which he
grants it, and the value of thei covenant for perpetual re-
newal ; " it is m truth an alienation perpetual, subject to con-
ditions; the power is to demise the said lands tenements and pre-
mises, or any part or parts thereof." • It is clearly, therefore, a
power extending to the whole, extending therefore to that which
was subject to ti.e leases for terms of years, as well as to that
which was not subject to those leases, and, if you were to hold
that the power did not extend to those leases, subject to the terms
for years, you would hold that the power amounted probably
to nothing ; because, when one looks at the duration of those
terms of years, it was utterly improbable that both of them
would outlive at least one of' those terms, the term of it was so
long.
'My Lords, in the case of Coventry v. Coventry, an argument
similar to this was made use of to support the leases in that
case, and the leases in that case were far snore objectionable
than the leases in this case, for a reasop I will presently observe
upon, particularly that in the case of Coventry v. Coventry,
there did arise an objection from the possibility of a forfeiture
of the term by the preceding tenant, or the surrender of the
term by the preceding tenant, which left an interval between
the operation of the leases there and, the occupation under the
succeeding lease ; that it appeared to me to require very seri-
ous consideration ; but the best authority in that case thought
that was not a sufficient ground to forfeit the lease, for that
such a forfeiture and such a surrender was not to be presumed;
this case does not require that sort of presumption, and there-
fore, I think, it is a stronger case in favour of the leases than
the case of Coventry v. Coventry.
My Lords, as John and Edward Galway had the power, if
they thought fit, to dispose of the whole inheritance, I take it
you must hold that construction with respect to the power'
which they had reserved, which is.most beneficial for them, be-
cause you are not by inference to control the power which the
absolute owner of the inheritance had; you ought rather,to hold
that the power should be construed most liberally in their fa-
vour, and that they had not parted with more than that which
they meant to part with; to set aside these leases you must hold
that they could make no freehold demise. I apprehend, they
could make a freehold demise; suppose they had attempted, by
virtue of this power, to commence on the expiration of the
term of years, I desire to know what authority under the law
there is for such a comnienceinent of a freehold estate ? I ap-
prehend there would certainly be none, for in the mean time
the power operated on the entire fee which passed by the settle-
ment; the effect of such an execution of the power, supposing
it could have effect, would be to leave a chattel interest only in
the persons to enjoy, in the mean time, under the lease; the
freehold would be gone ; they would have a chattel interest
during the remainder of this term, and no more.
My Lords, I conceive the proper way of executing the power
under the settlement was that which they have taken, that is,
to convey the freehold, and to convey the freehold immediately,
by which they made a lease in possession, for the other might
have been objected to as a lease in future, not a lease in posses-
sion ; and the power appears to advert to a lease in possession
and not in future; and I think it would have been much more
liable to objection if made in that form than if made in the
form in which it is made. The form in which it is made is
according to the terms of the power. There could be no ob-
jection to the lease; but by an inference which is attempted to
be raised from the words directing that there shall be a clause
of re-entry for non-payment of rent ; and by that inference you
are to suppose that such a lease, which in every other respect
conforms to the words.of the power, is not a good lease, be-
cause you are by inference to suppose a restraint on the use of
the power, which is not expressly averred in the lease, and
which is contrary to the very words of the settlement. It is in-
ferred simply, and only from those words, that a clause
,of re-entry for non-payment of rent should be reserved.—.
My Lords, in not the natural construction of those words,
instead of giving them an operation which in effect would
defeat the whole words of the settlement—is not it the
natural construction that such a power of re-entry should
be reserved as the nature of the case requires ? My Lords,
what is re-entry ? Re-entry is repossession of the former estate,
and here the repossession of the former estate is capable, under
the execution of the power contained in these leases ; that is,
the persons who had the former estate would be capable, by
st
virtue of the power of re-entry reserved in this lease, to re-
possessore
hisestate freehold interest
they hed
during
as i t before;
hti the e
refather
whichw ou would
freehold be re-
d to
interest would have as incident to it the rent reserved upon the
leases for years ; and if he died before the expiration of those
leases for )rears, the son would be in possession as of his former
estate of the freehold and of the rent.
My Lords, there is reserved a power of re-entry, in case there
should be no sufficient distress; and it is said that there could be
no distress upon those lands during the continuance of' the
lease for years, because during the continuance of the lease for
years, the lessee of the freehold would not have the possession
of the estate itself. I‘.ly Lords, that must he construed in the
same way by reference to the nature of the thing to be demised ;
for you must always, in construing instruments concerning pro-
perty, cone:der those instruments with reference to the nature
of the property which they do concern. It seems to me, there-
fore, that the objection which has been raised upon this subject
is unfounded ; that you must construe this settlement as in-
tended to give a power of creating freehold demises for lives,
renewable for ever upon the whole of the estate ; for otherwise
you violate the words of the settlement ; you must construe it as
giving that power, notwithstanding the clause of re-entry,
which is reserved, because consistently with the nature of the
estate, a clause of re-entry might be reserved ; and that is all
which is, as I conceive, required by this settlement, even if
these persons had stood in a different situation. if this had
been a settlement created by a third person, containing such a
power as this, I think it would have been far too strict to give
the construction which 'has been contended for; but when it is
considered that this is a power given ,by the persons who were
the owners of the inheritance, and who had the power of dis-
position of the property as they thought fit, and reserved to
themselves a power jointly which they did not give to either
of them separately, which they did not give to any other per-
son who might claim under the settlement, but confined it to
themselves jointly, it is evident, that they meant it as a power
of executing the general power of alienation which they had
before the settlement, and therefore, it is a rower that ought
to be construed in the most liberal manner ; ttus objection has
certainly been removed entirely out of the way by the de-
cision which has been mentioned by the Noble Lord who last
addressed your Lordships.
But another objection has been made upon the words which
require that the leases should not be made by any express
words, dispunishable of waste. Now, my Lords, what is there
here that does make them dispunishable of waste ? There is
a covenant, to repair which the settlement does not require ;
that is something beyond what is necessary, to make the lease ,
good under the settlement ;itis a beneficial covenant—a bene-
ficial covenant which the power in the settlement does not re-
quire ; and this beneficial covenant, which the power in the set-
tlement does not require, is now to be construed as having an
effect to avoid the lease under the settlement. AVhy my Lords,
does that covenant exempt them from being punishable of
waste ? As far as by law they were subject to punishment for
waste, independently of that covenant, they would remain as
much subject after that covenant as before. It is true, no ac-
tion can be brought against them on the covenant for not re-