CHAP. II.

LEASES AND LICENCES.

THE mineral districts of Great Britain are generally worked under leases or licences, upon the construction and obligations of which disputes very commonly arise. It seems expedient, therefore, to insert in this place a sketch of the nature of the instrument called a lease; of its form and requisites; and the rules of construction of the covenants contained in them.

A lease is a contract between parties by which the one conveys any lands or tenements to the other for life, for years, or at will. But it is always necessary that the lands or tenements must be let for a less time than the period for which the lessor has an interest in the property. The relation thus created is generally expressed by the phrase, landlord and tenant. A lease is usually made in consideration of rent, or some other annual recompense, to him who conveys the premises. The lessor, or landlord, has a reversion in the lands, &c., which are let; that is, after the expiration of the lease the land reverts to him. By virtue of this reversion, he has the power of distraining on the land for the rent which is agreed upon.

The ordinary lease is that for a term of years, by which lease, a rent, usually payable in money, at stated times, is reserved.

The words used in a lease for the purpose of conveying that interest in the lands or tenements which constitutes a term of years, are "demise, grant, and to farm let." But none of these words, though usual, are indispensable to the effect of a demise. Any expressions which sufficiently indicate the intention of one of the parties to divest himself of the possession for a determinable period, in favour of the other, are clearly sufficient to constitute a lease. And even the words " agree to let," may be so used as to amount, in construction of law, to an actual demise, and are not necessarily to be expounded as a mere agreement for a lease. The words may run in the form of a licence, or covenant, or an agreement. For a lease for years being simply a contract for the possession and profits of the lands or tenements on one side, and a recompense of rent, or other income, on the other, if the words made use of are sufficient to prove such a contract, in whatever form they are introduced, the law calls in aid the intention of the parties, and models and governs the words accordingly.

By the Act 8 & 9 Vict. cap. 106, s. 3 (passed in 1845), leases required by law to be in writing are made void at law unless they are made by deed.

The Statute of Frauds, 21 Car. II. c. iii., enacts that all leases or terms of years by parol, and not put in writing and signed by the parties so making them,

shall have the force and effect of estates at will only; excepting, nevertheless (sect. 2), all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount to two third parts at least of the full improved value of the thing demised. Yet, notwithstanding the statute, a parol lease for more than three years will create a tenancy from year to year. But a parol letting, to commence on a future day, for three years, is not warranted by the statute. If a landlord lease for seven years by parol (by which is meant a verbal letting, or one in writing, but not under seal, nor in the form prescribed by the statute), though such lease be void by the statute as to the duration of the term, the tenant holds under the terms of the lease in other respects, as to the rent, the time when he is to quit, &c.

BY WHOM LEASES MAY BE GRANTED.

All persons not under legal disability may grant leases for terms not inconsistent with the nature of their estates, provided they have the actual or constructive possession of the premises, and not a mere right of entry. The term granted in the lease must be for something less in duration than the interest of the person granting it. If made for the whole time it would rather be an assignment.

Tenants in tail may make leases to bind their issue, (but not those in remainder or reversion,) if a fair and proper rent is reserved, and the other conditions prescribed by the statute 32 Hen. VIII. c. xxviii.

are observed. So may a husband seised in right of his wife, provided she join in the lease by indenture. Such leases must begin from the date of the deed. If there be an old lease, that must first be surrendered, or be within a year of expiring. They must either be for twenty-one years, or three lives, or less. They must be of corporeal hereditaments, and of lands, &c., commonly let for the last twenty years past. The usual rent for the last twenty years must be reserved; and these leases cannot be made without impeachment of waste. These are

statutable leases.

Leases by tenants in curtesy, dower, or jointure, become void on their death, and the acceptance of rent by the heir does not make the lease good. The lessee continues to be mere tenant by suffe

rance.

The assignees of a bankrupt have under 6 Geo. IV. c. xvi. s. 77, general powers, and may make leases of the estate, if beneficial to the creditors; and the same powers are given to assignees of insolvents.

Executors and administrators may either assign a term come to their hands, or they may underlet in the same manner as the deceased person they represent might have done. But they must carefully see that they have that power by the will.

Mortgagors and mortgagees cannot make leases to bind each other's interests. Trustees for charities may make leases provided they are beneficial to the objects of the trust, but if otherwise, they may be set aside by a Court of Equity.

As to the power of ecclesiastical persons to grant

leases of mines and minerals, two enabling Acts have been passed in the present reign. By the statute 21 & 22 Vict. c. lvii. it is enacted, that if it shall be made to appear to the satisfaction of the Ecclesiastical Commissioners for England and Wales, that all or any part of the lands, mines, minerals, &c., belonging to any ecclesiastical corporation, which are by the stat. 5 & 6 Vict. c. cviii. allowed to be leased, might, to the permanent advantage of the estate or endowments, be leased in any manner, or be sold, or otherwise disposed of, it shall be lawful for any ecclesiastical corporation, aggregate or sole (except as in the previous Act is excepted), with the consents in that Act mentioned, and with the approval of the said Commissioners signified by deed, to lease all or any part of the mines, minerals, &c., belonging to such corporation, whether they may have been previously leased or not, in consideration or partly in consideration of premiums, for such term and on such conditions as the said Commissioners shall think proper.

By the former Act, in the case of a lease by the incumbent of a benefice, the consent of the patron is made necessary, and he must also be a party to the lease.

Every power that can be necessary for making mineral property available to the Church and its lessees, seems to be supplied in these two statutes. The special application of the proceeds is also defined and provided for, but need not be inserted in this treatise.

Leases of lands in copyhold capable of being leased