Lessee PORTER บ. T. T. 1844. from Co. Litt., where Lord Coke says that the tenure and attendExch. of Pleas. ance on a conveyance of the estate for life are transferred to the assignee. It is the principle on which was decided the case of Jenison v. Lord Lexington (a); and it is expressly declared to be the law in the case of Pluck v. Digges, by the House of Lords; and it is, I apprehend, too late now to quarrel with those decisions, even if it were competent to the Court to do so, merely because there is nothing found in the Statute of Quia Emptores, or any other Act on the subject of estates less than fee-simple. FRENCH. The last argument that has been used on this question, and which is to be found also in Chief Baron Joy's judgment in Lessee Walsh v. Feely, is that parties may, by the terms of their contract, as between themselves and their legal representatives, enter into the relation of landlord and tenant, though not so in strict contemplation of law and cases are relied on as showing that sometimes deeds, operating by way of assignment, may be treated as underleases between the parties to them. I admit that the case of Poultney v. Holmes (b), and some others of that class, may be quoted as showing that in cases of assignment the parties may still be sued as for rent, or for a payment in the nature of rent, for a sum reserved periodically to the assignor; as is expressed by Tindal, C. J., in the case of Baker v. Gostling (c); but this is on the privity of contract created between them: and as to the case of Lloyd v. Langford (d), which is quoted by Joy, C. B., it is one in which it is held that an interest passed to the grantee in reversion. What is there said on this subject is but the argument of Counsel; and no decision expressing such a reason or principle is stated to have been made by the Court. When therefore it is urged, on the authority of this class of cases, that the relation of landlord and tenant may, by contract, be created between the parties, without a reversion, I think the case of Pluck v. Digges must be treated as a full answer to that argument: in truth it is only putting the doctrine of estoppel in another shape, as Jebb, J., says in the case of Lessee of Fawcett v. Hall (e). On all these grounds, I think that no relation of landlord and tenant, in contemplation of law, existed between the parties; that to bring the case within the Ejectment Statutes, such a relation must be shown to have existed: and that as well for the several reasons I have given on the general question, as on the authority of the case of Pluck v. Digges, the defendant on this record is entitled to judgment. PENNEFATHER, B. I should not, perhaps, have thought it necessary to say any thing on this case after the full and excellent judgment of my Lord Chief Baron, if I had not at one time entertained an opinion different from that which this Court now pronounces, and in which I concur. It did appear to me for a considerable time that the Irish Ejectment Statutes were intended to apply to cases where the parties had constituted between themselves apparently on the face of the instrument the relation of landlord and tenant; and that opinion was impressed upon my mind at an early period after I came to the Bar, and continued so impressed from my not having investigated the case so fully as it has now been investigated, and from an understanding perhaps erroneously taken up, that the Profession generally entertained the opinion that ejectments under these statutes might be maintained under circumstances like the present. Much of the land in this country is holden in this manner; for though the tenure of lives renewable for ever scarcely exists in England, in Ireland a large proportion of the land is held by that tenure, and in many instances the lessees under leases for lives with covenant for perpetual renewal have granted leases for the same lives to their undertenants, and containing covenants for renewing for ever for the same lives as shall be contained in the renewals made to themselves. This state of things had induced me at an early period to form an opinion which, notwithstanding the cases decided on the subject, and which have been referred to, was, as I thought, common in the Profession; that where the parties by their contract put themselves in the relation of landlord and tenant, the respective rights and duties arising from that relation should continue to subsist between them, though the instrument by which that purpose was attempted to be effected did grant a term, which by operation of law constituted the tenant not a lessee merely but an assignee. That the Profession generally so understood was strongly impressed upon my mind. The point was raised in the case to which my Lord Chief Baron has alluded as having come on in the year 1794 (a) but had never been decided, and that case seemed to have been forgotten by the Profession. It does not appear to have been noticed in any argument in the subsequent cases, perhaps because it was not a decision of the point, and it seemed to have escaped recollection. My Brother Richards assigns a reason why it has not been noticed, that there was a great deal of argument on both sides; (a) Lessee Walker v. Williamson, Ir. T. Rep. 271. T. T. 1844. Lessee PORTER V. FRENCH. T. T. 1844. and as there was no decision of the point, parties were unwilling to Each. of Pleas. bring it forward to the Court. The case of Greene v. Keller (a) was Lessee PORTER บ. FRENCH. for a length of time considered as having decided the very point now under discussion. Hence an impression arose and existed in the minds of most persons conversant with the administration of justice and conveyance of property in this country, that Lessee Greene v. Keller was decided on the ground that the ejectment was maintainable though the same lives were named in both leases. And that impression was not removed before the decision of Pluck v. Digges in the House of Lords, for the majority of the Judges in the Court of Error here, when that case came before them, were strongly impressed with the same opinion. I say so much to account for the views that have been hitherto taken in this country on this subject. But I do think, on examination of the authorities, it must be considered that the person who makes over his interest in land for the same term of lives or years for which he himself holds, executes not a lease, properly so called, but an assignment. I think the authorities which my Lord Chief Baron has referred to-and referred to in a manner which must strike the mind of every body who heard his judgment-must set this point at rest; and that in point of law the person to whom a conveyance is made of the same term for which his grantor holds, must be considered an assignee, though by the instrument of conveyance a rent has been attempted to be reserved to the grantor. That being so, we are to consider whether the words "landlord and tenant" in the Ejectment Acts can be held to be used in any other than the legal sense, and whether a popular meaning can be attributed to them. It has been said, and no doubt, with great reason, that inconveniences will result from a strict interpretation of these words in these Ejectment Statutes; but the apprehension of inconveniences that may arise can be no reason, where the meaning of a statute is clear, why the Court should construe it otherwise than according to the meaning which it clearly bears; and on looking at these Ejectment Statutes, beginning with the first of them, the 11 Anne c. 2, it will appear very manifest, that it and all the subsequent statutes apply merely to cases between landlord and tenant, within the strict legal meaning of these terms. This being the case, does the relation of landlord and tenant subsist in the present case, in the strict meaning of these terms? Estoppel cannot take place because an interest has passed; then the tenant, so called, must be at liberty to show what the nature of the (a) Eaton, dem. Greene v. Keller, Hudson L. & T. 486 (in notis.) estate is which the other party has; and where the whole interest The Statute of Quia Emptores only applies to the subinfeudation of estates in fee-simple. The consideration that it does not extend to leases for lives, is an argument to show that no relation of landlord and tenant subsists where lessee for life parts with his whole interest, inasmuch as no fealty existing in lesser estates than those of inheritance, at the time of the passing of the statute, it must have been considered that a tenant for life granting for his whole estate, did not, by the mere reservation of rent, create the relation of landlord and tenant between him and his grantee. I do not think it necessary to go farther. Independent of all other considerations, I find it impossible to distinguish on principle the case of ejectment from that of distress. The right of making a general avowry is given by these statutes where the relation of landlord and tenant subsists; and every word in these statutes applicable to the one appears applicable to the other. I cannot see a distinction between the case of ejectment and replevin; I therefore hold Pluck v. Digges to be an authority which must bind us in this case, although it be an ejectment; and on full consideration I think that case was well decided, and on principles which I feel bound to acquiesce in. If there had been any case decided in this country after the passing of the first of these Ejectment Statutes-that of Anne-and between it and the next subsequent statute, such decision must have had great weight with the Legislature in enacting the subsequent statutes, but no such decision appears; on the contrary, the case in 1794 shows that what was considered the general understanding of the Profession was not really so, or at least was not acquiesced in by all. RICHARDS, B. It has been pressed upon the Court that the instrument in question is in the form of a lease, and no doubt it is, and that the executing parties to it manifestly considered it to be a lease, and intended that it should operate as such; that it contains a covenant that the T. T. 1844. Lessee PORTER V. FRENCH. Lessee PORTER T. T. 1844. grantee, at the end of the term, or other sooner determination of Exch.of Pleas. the demise, as it is called, should yield up the quiet and peaceable possession thereof unto the grantor. And it also contains a clause of re-entry in case of non-payment of the sum which the grantee thereby took upon himself to render; and also contains other clauses and covenants such as are usually introduced into leases made between landlord and tenant. บ. FRENCH. It further appears that more than one year of the annual sum thereby reserved was due and in arrear at the time of bringing the ejectment, and it has been argued and pressed that the Court, in construing this instrument, should have special regard to its form-I mean to the circumstance, that it is in the ordinary form of a lease— and that we are bound to give effect to the manifest intention of the parties themselves a principle which I fully admit, subject, however, to the consideration, that there are certain known rules and principles of law which it is not competent to individuals to set aside or overturn at their pleasure. But assuming that the parties intended this instrument should operate as a lease, and not as an assignment, are we not nevertheless bound, in the first instance, to see (the doctrine of estoppel having no application to the case) what are its legal characteristics, and in particular, what is the nature of the render which the grantee contracted to make, whether it was a rent such as that reserved upon a lease between landlord and tenant-I mean a rentservice? Now, I apprehend it clearly was not; it was in law a rentcharge, for the recovery of which the grantor no doubt had his remedy by distress, but only by virtue of the clause of distress contained in his deed, and nothing else: Parmenter v. Webber (a); Pascoe v. Pascoe (b); Pluck v. Digges (c). That proposition, which I apprehend is not now to be controverted, being admitted or established, goes far, in my opinion, to decide this case; for it does decide, no matter what may be the words in the deed, that the relation of landlord and tenant, as understood in the law, does not, and could not, exist between parties so circumstanced. It is argued, however, that the relation of landlord and tenant in a sense different from the strict legal sense, may still exist in this case, regard being had to the form of the instrument in question. This is said, but I have not heard any one define the sense in which the words "landlord" or "tenant" or "lessor," if they are not to have their legal meaning, are to be received and understood by the Court; and the difficulty in attempting such a (a) 8 Taunt. 593. |