*

counsel for the plaintiff, assuming for the sake of the argu ment that this was a lease, was proceeding to shew that it was not a lease absolute for the life of Mrs. Bromfield, but only during the joint lives of Mrs. Bromfield and Wm. Smith, and consequently that the interest expired on his death. The Court, referring to that part of the agreement which stipulated for "a clause to be added in the lease," were decidedly of opinion that those words, importing that something ulterior the agreement was to be done by way of a regular lease, shewed the intention of the parties to be, That the writing in question should operate only as an agreement for a lease, and not as the lease itself; and Lord Ellenborough, C. J. referred to Goodtitle d. Estwick v. Way (a); Doe d. Coore v. Clare (b), and Doe d. Jackson v. Ashburner (c), as having settled the point; and asked if this did not make an end of the case, as the legal title was at all events in the lessors of the plaintiff; but on its being suggested by the defendant's counsel that there ought to have been a notice to quit, which had not been given,

Reader, for the plaintiff, said, That at all events, if a lease had been granted pursuant to the terms of the agreement, it would have terminated with the death of Wm. Smith; and that since then, nothing had happened to create any new tenancy between the lessors and the defendant, so as to entitle her to a notice to quit. If the agreement had stopped at the words "supposing it to be occupied by himself," it is clear that it would at most have been only a lease for the joint lives of Mrs. B. and W. S.; for it would be a demise during her life and his occupation; and, as on his death he could no longer occupy the premisses, one condi

1805.

DOE ex dem.

BROMFIELD

against SMITH.

*[ 531 ]

tion of the lease necessarily failed. Then the subsequent [ 532 ] ] words, or a tenant agreeable to me," only meant to give W. S. the option of occupying the premisses either by himself or an under-tenant, provided such under-tenant were agreeable to his lessor; but this permission could not enlarge the estate granted to W. S. so as to extend his interest beyond his life; for the occupation then could not be referred to him; but if an executrix could be considered as an under-tenant to the deceased, yet the lessor has shewn

(a) 1 Term Rep. 735.

(b) 2 Term Rep. 739.

(c) 5 Term Rep. 163. The same rule was laid down in Doe d. Cawood . Banks, E. 27 Geo. 3, B. R.

Ee 2

her

1805.

BROMFIELD against SMITH.

her disagreement to such an underletting, by bringing this Dog ex dem. ejectment. A proviso for re-entry in case of any assignment of the premisses by the tenant, even under a commis sion of bankrupt, has been holden to be valid in Roe v. Galliers (a); a fortiori, therefore, a condition of that sort shall bind the personal representatives of the tenant. Buller, J. in that case said, "It is clear that the landlord parted with the term on account of his personal confidence in his tenant: that is manifestly the case in all leases where clauses against alienation are inserted," &c.; and again, "Suppose a lease were made for 21 years, on condition that the tenant shall so long continue to occupy the land personally, there could be no objection made to such a condition." Now, this is in effect the same; the lease at all events terminated on the death of W. S. which made an end of the personal confidence, and no interest ever vested for an instant in his executrix. He also referred to Co. Lit. 204, (a) and Chichley's case, Dy. 79, a (b).

[533]

Clarke, contra. The legal effect of the agreement al together is, and equity would have compelled the execu tion of it accordingly, that Mrs. Bromfield should grant a lease to W. S. for her own life, with a covenant by him not to underlet without her consent. The words of agreement to lease are those of the lessor, and therefore to be taken most strongly against her: they are "during my life;" and then she annexes the condition on the tenant of occupation "by himself or a tenant agreeable to me." The tenant therefore had an interest in the term during Mrs. Bromfield's life, subject to be defeated by his underletting to one who was not agreeable to her. He could not have determined his interest against his lessor's consent merely by ceasing to occupy or by underletting to another; for she might have waved taking advantage of the condition broken. Again: If the lessor had consented to the under-lease, the tenant would have been entitled to hold during her life; for in that event the alternative of the condition would have been complied with; that is, it would have been a lease for her

(a) 2 Term Rep. 133.

(b) Vide Co. Lit. 214, b, as to the distinction between a condition annexed to a freeboid, and one annexed to a lease for years, where no entry is necessary; and ib. 234, b, as to words of limitation, which are conditions in law.

1805.

DOE ex dem.
BROMFIELD

against
SMITH.

life upon a condition performed, viz. the occupation of the premisses by a tenant agreeable to her. Then, after her acceptance of the under-tenant, the other alternative of the occupation of W. S. would have been waved, and consequently his death afterwards could not have affected the duration of the lease. This shews that the lease, if granted, would not necessarily have expired with W. S.'s life. But further: Such a proviso in a lease would have been restricted to voluntary assignments, or such assignments by law as arise out of the voluntary acts of the tenant, and would not extend to his personal representatives when dead; for such a transfer of possession is worked by operation of law alone. [Lord Ellenborough. If a lease had been executed under [591] the direction of the Court of Chancery upon a bill for a specific performance of this agreement, there would have been a covenant required of the tenant not to depart with the possession as not to assign, and to restrict the duration of the lease to his own personal occupation, and exclude executors, &c. as well as assignees in general.] In Wrenford v. Gyles (a), where a lease was for 21 years, if the lessee lived so long and continued in the lessor's service, it was ruled that the lease continued after the lessor's death during the term, it being the act of God that the lessee could not continue in his service. But supposing that the lessor may object to the occupation of the executrix, yet the question must be considered the same as if I. S. had before his death underlet to one whom the lessor did not approve of; and as that would only have made the lease voidable, the ejectment could not have been maintained without an entry to avoid it. At all events, however, there ought to have been a notice to quit, in order to deteriniue the tenancy; for the instrument of demise operating only as an agreement for a lease, and not as a present demise, W. S. was only tenant from year to year under it, and consequently upon his death his executrix also became tenant from year to year; and her interest could not be determined without a legal notice to quit (6).

(4) Cro. Eliz. 643. This case was ruled by three Justices against WalmsJey, J. and it is reported with a quære; but it is referred to in 4 Bac. Abr. 182, tit. Leases, &c. without any note of disapprobation; and Lord Ellenborough now observed on it, that the tenant served as long as he could. (b) Vide Doe v. Porter, 3 Term Rep. 13.

1905.

Dos ex dem.
BROMFIELD
against
SMITH.

Reader, in reply. If the parties meant, as the agreement shews they did, that there should be no change of the personal occupation of the tenant even during his life, without the consent of Mrs. Bromfield, that shews that it could not 535 have been meant to extend the interest beyond his life. In Wrenford v. Gyles the object of the demise was not the per sonal occupation of the tenant, but to secure his service to the lessor, and at any rate to give him an interest for 21 years, if he did not forfeit it by voluntarily withdrawing his service before. Besides, that case did not pass without dissent. Then, as to the necessity of an entry, that is only re quired to take advantage of a forfeiture, but not when the tenancy is expired: neither is a notice to quit necessary in the latter case.

[ 536 ]

Lord ELLEN BOROUGH, C. J. The point to which my at tention was principally directed by the perusal of the paperbook was, whether the instrument operated as an executory agreement for a lease, or were an executed present demise; and from the authorities which I before mentioned, it appears certain that this was only an agreement for a lease. But from the turn of the argument it may be proper to consider what interest the tenant would have taken if a lease had been executed pursuant to the agreement; and I think it would have been a lease for the joint lives of himself and Mrs. Bromfield, with proper covenants to restrain him from parting with the personal occupation of the premisses, during his life, without her consent. The first material words are, that the agreement is "to continue during my life:" the term, therefore, could in no event exceed Mr. B.'s life. Then it gocs on," supposing it to be occupied by himself, or a tenant agreeable to me:" those I consider as words of condition, requiring IV. Smith either personally to occupy the premisses, or that he should occupy them by some other tenant agrecable to her; still regarding it however as in effect, the occupation of W. Smith himself. His interest, therefore, ended with his life, and as he continued in possession to the last upon the terms of the agreement, we cannot refer his possession to any other title; and consequently the ejectment was well brought upon his death without giving his execu trix any notice to quit. If any interest had survived to her, the case would have been open to another consideration; but no interest whatever vested in her.

GROSE,

1805.

BROMFIELD against SMITH.

GROSE, J. Even supposing that this had been a lease, the meaning of the parties clearly was, that no other person Doe ex dem. ' than Wm. Smith should at any time occupy the premisses, except with the concurrent agreement of him and Mrs. Bromfield during their joint lives. Then, Is this defendant a person whom both have agreed to? Surely not. From the nature of the agreement it could only operate during their joint lives; and his death determined his interest.

LAWRENCE, J. I had supposed with my Lord that the only question meant to be raised was, Whether this were a lease or an agreement for a lease? and my attention was not previously directed to the point on which the case has been now argued. I do not think that the bringing of this ejectment differs the question between these parties. If any interest vested in the executrix under this agreement, considering the meaning of it to be that the interest should enure during the life of Mrs. Bromfield, I should conceive that the executrix was entitled to occupy the premisses in the same manner as the original tenant, restrained only from putting in any other occupier without Mrs. Bromfield's consent. But I consider the whole agreement as confined to the joint [37] lives of the contracting parties. Mrs. Bromfield clearly meant to restrain it to her own life; and then the words which follow, "supposing it to be occupied by himself or a tenant agreeable to me," shew, I think, that it was to be confined to W. Smith's life. She looked in truth to his occupation alone; and the latter words do not vary that view of the case; for no other tenant was to occupy the premisses without her approbation, and it would still have been considered as the occupation of W. S. himself. If then an application had been made to the court of Chancery by W. S. to compel an execution of a lease pursuant to the agreement, it would have been so drawn as to pass the interest only during their joint lives, and consequently all his interest ended with his death.

LE BLANC, J. It is evident that this instrument was only intended as a minute of a lease, by the reference to a clause thereafter to be added in the lease itself; and that it was only meant to be a letting to W. Smith personally; for the lessor only agrees to let to him, without saying his execu