reversionary leases, they have been considered trustees for the old uses. (1) Where trustees have a discretionary power to renew, they have no option to renew or not: but they must do so for the benefit of the cestui que trust. (m) So where such estates are limited in settlements or mortgaged, it is incumbent on the person in possession to renew for the benefit of those in remainder, or of the mortgagee. But here a collateral question of some importance arises with respect to the fines payable on such renewals. In mortgages, if the mortgagor in possession neglect or refurse to renew, the mortgagee may effect a renewal; and the fine and expenses of the renewal will be charged on the premises, and bear interest. (n) The bequest of an annuity charged on the testator's leasehold interest during the term of the said lease extends to, and is charged upon every renewal obtained by the devisee of the leasehold interest, and the annuitant must contribute to renewal fines in proportion to his interest: (0) but if an annuity has been granted in the way of security for the loan of money, it has been held that a life annuitant is not bound to contribute. (p) If a fine be paid for the renewal of a lease by one of two joint tenants, he has a lien on the other moiety, though under settlement. (q) So in the case of a leasehold estate for lives, where it was settled on the husband for life, and he renewed by putting in the life of the wife, he was held to be a creditor on the estate for the fine and charges of renewal. In marriage settlements there is usually a provision for the payment of the renewal fines out of the rents and profits to be received by the trustees. If they neglect to renew, they are answerable for a breach of trust: but the assets of tenant for life, or other person taking the beneficial interest, will be first applied to indemnifying (7) Butler's note, Co. Litt. 290. b. I. XI. (m) Lord Milsington v. Lord Mulgrave, 3 Madd. Ch. Ca. 491. Lord Milsington v. Lord Portmore, 5 Madd. Ch. Ca. 471. (n) Lucken v. Rushworth, Finch. 392. Laçam v. Mertins, 1 Wils. 34. Rushworth's case, 2 Freem. 13. (0) Winslow v. Tighe, 2 Ball. & Beatt. 195. (p) Maxwell v. Ashe, 1 Bro. Ch. Ca. 444. n. (q) Hamilton v. Denny, 1 Ball. & Beatt. 199. the trustees from the expense of renewal where they have neglected to provide the requisite fund. (r) Where, therefore, there were several tenants for life, and the lease was renewable every fourteen years, and two periods elapsed in the lifetime of the tenants for life without renewal by the trustees, the tenants for life were declared liable to the extent they would actually have suffered a diminution of rent, if the rents had been properly applied. In this case one of the tenants for life had assigned his interest: the lord chancellor said that the trustees could have no claim on the assignee; but the remainderman might in case of all other funds being found insufficient. Where there are no trustees, if the tenant for life renews, those in remainder will be called upon to contribute in proportion to the interest they take in the renewed lease. Before the case of Nightingale v. Lawson, (s) the rule of the Court was, that the tenant for life should contribute to the renewal in every case, except where a devise was made of leases renewable for lives; and the devisee was one of the cestui que vies. (t) The proportion adopted was one-third, to be paid by the tenant for life, and the remaining two-thirds to be a charge upon the inheritance. In Nightingale v. Lawson, Lord Thurlow said, that where there is no custom or direction by will to renew, it is in the discretion of tenant for life to renew or not: but if he renews, the law will not permit him to renew for his own benefit only; but will make him a trustee for the remainderman. Then upon what terms is the remainderman entitled to it? As to the idea that it is to be upon the payment of two-thirds, or any other proportion, that cannot be the rule; for if there were twenty or thirty years of the existing lease to run, it cannot be thought for the benefit of tenant for life to renew. In the principal case the tenant for life, when there were twelve years to come, renewed for twenty-eight: she enjoyed it for nine years after the twelve were expired, leaving nineteen years. The master, he said, ought therefore to charge the remainderman with those nineteen years, with compound interest, at 4 per cent. per annum, on the advance made by the tenant for life, till the time of her death; after which it be (r) Lord Montford v. Lord Cadogan, 17 Ves. 485. 2 Meriv. 3. (s) 1 Bro, Ch. Ca, 440, (t) Adderley v. Clavering, 2 Bro. Ch. Ca. 659. White v. White, 4 Ves. 33. comes a demand of her executors, and is in the nature of a common debt bearing simple interest. The point seems to have been finally settled by Lord Eldon. (u) His lordship observed that, from a note of his own, the opinion of Lord Kenyon when at the bar was, that there never had been a case in the court in which where the court had no other fund to deal with than that constituted by the interest of the remainderman, in such leasehold property the rule of two thirds and one was ever applied. Each case must be decided according to its own circumstances: for in the case of an infant what would the court direct to be paid, where the infant might or might not take an actual interest? Lord Kenyon's opinion was, that at the death of the tenant for life who renewed, it should be seen what was the increased value of the estate purchased by him: then the payment made by anticipation should be considered ; and, upon the principle of compound interest, the value of that increased interest purchased by the tenant for life should be charged on the remainderman. If the remainder-man advanced the money, the calculation should be made the other way. It must also be remembered that the lessor may refuse to renew, and the lease may run out. It may be under such circumstances that the interest the remainderman takes may be nothing more than the opportunity the lease renewed in præsenti has secured to apply at the end of the term for another renewal, in which the remainder-man may take an actual interest. There is no difference between leases renewable for years, and those renewable for lives; except the difficulty in the latter case of estimating the life which may survive out of the cestui que vie, and consequently the interest of the remainder man In the case of Buckeridge v. Ingram, (x) Lord Alvanley thought that the tenant for life had only to keep down the interest: but Lord Eldon dissented from this doctrine, because the tenant for life might enjoy nine-tenths of the benefit purchased by the principal money. And he drew a distinction between this case, and that of a mortgage debt: for, in the case of tenant for life of the equity of redemption, there was a permanent corpus or interest; but in renewable leases for lives or years, the interest was temporary, (u) White v. White, 9 Ves. 556. Allan v. Backhouse, 1 Ves., and B. 65. (x) 2 Ves. J. 666. Verney v. Verney, 1 Vez. 429. and might cease by the lessor's refusal to renew therefore that position, that tenant for life is bound to pay the interest only, must be understood with this correction, that he is further liable to be charged with a due proportion of the benefit he takes in the estate. In the case of Lord Montfort v. Lord Cadogan, (y) the master of the rolls in the first instance thought that the assets of the tenants for life should be liable in proportion to the time of their enjoyment; but, on appeal to the lord chancellor, the decree was varied as to this point. If the trustees, it was said, had done their duty, the second tenant for life would have had a lease for fourteen years, and a sufficient fund for a new renewal. To that extent the estate of the first tenant for life was chargeable, and the estate of the next tenant for life would be only chargeable to the amount necessary to be reserved out of the rents for the next renewal. By the stat. 29 Geo. II. c. 31. (≈) where infants, lunatics, and femes-covert, are beneficially interested in the tenant right of renewal, the courts of equity in England and Wales, upon a summary application to them, by petition or motion in a summary way, may direct the surrender of existing leases for the purpose of renewals; the fines and charges in the case of infants and lunatics to be paid out of their estates, and in the case of femes-covert to be charged on the premises. By the third section it is enacted that the renewed leases shall be to the former uses. (a) An executor, trustee, or guardian, cannot alter the nature of renewable leases; therefore, where such leases had been usually renewed for years determinable on lives, and the executor at the request of the landlord renewed for lives for the benefit of an infant, it was held that it would go to the executor of the infant, and not to his heir. (b) In conclusion, no instrument to which the lessee is not a party is strictly speaking a lease, because the benefits and engagements being mutual, the instrument creating them should be obligatory on both parties. Therefore an agreement between A. and B., that C. shall have the land is no lease, but merely an agreement (y) 17 Ves. 485. 2 Meriv. Ch. Ca. 3. 19 Ves. 635. (*) Qu. Irish Statute. (a) Ex parte Swann, 2 Dick. 749. between strangers. (c) So in another case, (d) where one made a lease for life; et provisum est that if the lessee died within sixty years, then his executors and assigns should enjoy the land in his right for so many years as should remain of the sixty years from the date of the lease, one of the reasons given by Moore why this proviso was not considered a lease was because the executors were not parties to the deed. So also where a lease was made by indenture to trustees for forty years, if the lessor so long lived, and after the death of the lessor one moiety of the land was granted to A. for 1000 years, and the other moiety to B. for a similar term, who were neither of them parties to the deed: it is reported that the court objected, and doubted whether the remainder to A. and B. was not void, because they said it could not pass to them by way of a present interest, because they were not parties to the deed. (e) It is true that the interest could not pass a present estate on account of the reason stated: and it was contended that it could not be a contingent estate for years, because a lease for years operates by way of contract; and therefore the particular estate and the remainder for years might be considered as two distinct estates, grounded upon two several contracts. According to this opinion the lease in remainder seems to have been considered a present disposition of the land, though to commence in futuro; and consequently to have required a grantee in præsenti capable of taking the interest granted as an interesse termini. But this opinion is not now received as sound law, and the judgment in the case cited may be accounted for on other grounds. (f) On the contrary it is now settled that, although persons not parties cannot take any present interest, terms for years by way of remainder may be limited to them; and when such remainders come into possession, those who take the benefit of them will be liable to all the obligations of lessees. (ƒ) In 3 Leon. 32. an anonymous case is reported, in which it was determined, that where a lease is made for years, if the lessee should so long live; and afterwards a second lease for years is made to the same lessee, habendum to his executors after the first lease ended: this second lease must be considered void, because (c) Perry v. Allen, Cro. Eliz. 173. Littleton v. Perne, 1 Leon. 136. Cole v. Friendship, I Leon. 287. Brewer v. Hill, 2 Anstr. 413. (d) Parker v. Gravenor, Moor. 480. (e) Corbet v. Stone, Tho. Raym. 140. (f) Wrightd. Plowden v. Cartwright, 1 Burr. 282. |