Trustees holding the legal title to land can grant leases, limited by the quantity of estate they possess. Their authority is usually joint, and must be exercised by them jointly. Sinclair v. Jackson, 8 Cow. 548. A lease granted by trustees, without the concurrence of the beneficiary, is subject to the control of a court of equity, if the lessee had notice of the trust. As the beneficiary cannot give a valid lease without the concurrence of the trustees, it is advisable that both or all should join in a lease. Blake v. Foster, 8 Term, 487; Malpas v. Ackland, 3 Russ. 273. In order that the covenants may run with the land, they should be to the trustee, but the rent may be reserved generally. Webb v. Russell, 3 Term, 393. The time for which a trustee may grant a lease is limited by the circumstances of the particular case, and not by the period of the trust estate; but the trustee or his lessee must be prepared to show its reasonableness, if called in question. Atty.Gen. v. Owen, 10 Ves. 555; Greason v. Keteltas, 17 N. Y. (3 Smith) 491; Naylor v. Arnitt, 1 Russ. & Mylne, 501.

An executor can demise lands devolved upon him by the will of his testator, even before probate; and, if there be several executors, either of them may do so. Simpson v. Gutteridge, 1 Mad. 616. At common law, an executrix, if a married woman, could not act without the concurrence of her husband, but he might act in her place, without her

consent.

An administrator can lease only when specially authorized to do so. Bank of Hamilton v. Dudley, 2 Peters, 492; Roe d. Bendall v. Summerset, 2 W. Bl. 694. He cannot make a valid lease of premises which were specially bequeathed, without the concurrence of the devisee. See Vol. 2, tit. Executors and Administrators.

Receivers appointed by order of the court may be specially authorized to grant leases.

An agent may execute a lease for his principal, provided he has proper authority and pursues it strictly, acting in the name of his principal, and for his benefit. His authority may be verbal, unless required by law to be in writing; and a subsequent ratification or adoption of his acts will supply the want of previous authority. As a general rule be cannot take a lease for himself of property which he is employed to let.

Aliens were formerly subjected to disabilities in respect to acquiring real property, but they have been to a great extent removed by statute both in England and in this country. Whether aliens can now grant leases depends upon the statutes on that subject, which should therefore be examined.

ARTICLE V.

FORM AND NATURE OF A LEASE.

Section 1. In general. A lease for life must be under seal, but one for years or a less term may be in writing not under seal, or by verbal agreement only, except where otherwise prescribed by statute. If intended to include the usual covenants, it must be sealed.

A lease must be supported by some valuable consideration. This may be the usual one, of a rent reserved, or it may be natural affection, money, animals, produce or services, such as would support any other contract. Where a rent is to be paid, but its amount is not fixed, the law fixes it at the reasonable worth of the use of the premises. Failing v. Schenck, 3 Hill, 344; State v. Page, 1 Spears (S. C.), 408; Scrantom v. Booth, 29 Barb. 171.

The date of a lease is not a matter of substance, and an omission of or mistake in the date does not vitiate the lease. If it has no date, or an impossible one, and no time is fixed for its commencement, it will commence from delivery. A reference to the date in the body of a lease which has a sensible date is to that date, and not to its delivery; but the date is not conclusive as to the delivery, for either party may show that delivery took place on a different day. Church v. Gilman, 15 Wend. 656.

A lease should contain the names of the parties. If executed by an agent of the lessor it should run in the name of the principal, and to the intended lessee. If persons who describe themselves in the caption as trustees, or agents, execute in their individual names, and covenant as such, they bind themselves and not their principal. Stobie v. Dills, 62 Ill. 432; Kiersted v. Orange, etc., R. R. Co., 1 Hun, 151; S. C., 3 N. Y. Sup. (T. & C.) 662. A sealed lease will be void if the name of the lessee be not filled in before delivery. Jackson v. Titus, 2 Johns. 430. The omission or insertion of the middle name of either party is immaterial; and a misspelling of or variance in the name of a corporation, not making it materially different from the true name, will not affect its validity. McCarthy v. Noble, 5 N. Y. Leg. Obs. 380. No particular form of words is necessary to constitute a lease; but whatever terms express the intention of the one party to divest himself temporarily of the possession of his property, and of the other to receive and hold it, will be sufficient. Hallett v. Wylie, 3 Johns. 47; Thornton v. Payne, 5 id. 74; Maverick v. Lewis, 3 McCord (S. C.), 211. The terms usually employed are "demise, grant, lease and to farm VOL. IV.-29

let;" but a covenant to stand seized to the use of the covenantee, or a license to enter and enjoy, will operate as a lease (Right d. Bassett v. Thomas, 3 Burr. 1446; Right d. Green v. Proctor, 4 id. 2209); and so will an agreement between vendor and vendee, by separate instruments, that a person named shall be a tenant to the latter (Doe d. Jacklin v. Cartright, 4 East, 29); and a recital in a will that the testator has leased, will operate as a lease by way of estoppel. Denn v. Cornell, 3 Johns. Cas. 174.

A lease must describe the premises demised with reasonable certainty, otherwise it is void. Dingman v. Kelly, 7 Ind. 717; Pierce v. Minturn, 1 Cal. 470. Where, in the description, numerous particulars are mentioned, all of which do not concur, the intent is to be ascertained in the same manner and by the same kind of evidence as in the case of other contracts. If the premises are bounded on a river, without specification of the exact line, the lease is presumed to go to the center and carry half of the bed and soil of the river. Dwyer v. Rich, 6 Ir. C. L. 144. Where a lease described the premises as those which a person "now occupies," it was held to carry only so much as was actually occupied by him, and a building or a gateway connected with the premises, but not occupied by him, was held to be excluded. Magee v. Lavell, 9 L. R. C. P. 107, 8 Eng. Rep. 423; 43 L. J. C. P. 131; 22 W. R. 334; Dyne v. Nutley, 14 C. B. 122; 2 C. L. R. 81.

Ordinarily, the grant of a thing will pass all such things as are directly incident to it and necessary to its enjoyment, unless they are expressly reserved. Riddle v. Littlefield, 53 N. H. 503; 16 Am. Rep. 388. A lease of a house carries the land under its eaves and projections, also its garden; of a house and barn, the land necessary to their complete enjoyment; of a farm, all the buildings upon it; and of an interior parcel of land, a right of way to it over the grantor's other lands. Sherman v. Williams, 113 Mass. 481; 18 Am. Rep. 522; Hay v. Cumberland, 25 Barb. 594. But an easement will pass only where it is necessary, and will cease with the necessity. Kooystra v. Lucas, 1 D. & R. 506; 5 B. & Ald. 830; Skull v. Glenister, 11 W. R. 368; 16 C. B. (N. S.) 81; 33 L. J. C. P. 185.

Recitals in a lease sometimes operate by way of estoppel; but an erroneous recital is generally held immaterial, unless it shows that the lessor had no interest in the subject-matter of the demise. Hermitage v. Tomkins, 1 Ld. Raym. 729; Jackson v. Streeter, 5 Cow. 529; Foot v. Berkley, 1 Vent. 33.

A reservation of rent is not essential, nor, if inserted, need it be in any particular words or form. The usual terms are "yielding and pay

ing," or "provided the lessee shall pay" a sum specified, or "in consideration of the rent aforementioned." If the reservation is in general terms without saying to whom, the law will apply it according to the nature of the lessor's interest. If it be special, it should be to the person from whom the lessee derives his estate, or to the legal owner, and not to a stranger. Gilbertson v. Richards, 4 H. & N. 277; Frontin v. Small, Stra. 705. But a reservation of rent to the lessor's heirs has been held good, where the lease was not to commence until after his own death. Oates v. Frithe, 2 Rol. Abr. 447. Courts formerly gave different effects to leases of a freehold, where the reservation of rent was to the lessor and his heirs ;-to him and his executors ;-to him and his assigns; or to him, his executors, administrators or assigns; but, probably in all such cases, especially where the intent appears that rent shall be paid during the whole term, the rent will now be held to follow the reversion. Taylor's Land & Ten., § 156.

An exception may be inserted in a lease restraining, explaining or qualifying its general terms. The office of an exception is to sever some existing component part of the thing demised, which would otherwise pass. It will be void if it does not express the thing excepted with reasonable certainty (Dorrell v. Collins, Cro. Eliz. 6); or if it excepts that which is expressly granted by the lease, or that as to which the lessor had no right or responsibility. The thing excepted will include every thing dependent on it, and necessary to its enjoyment, such as a right of entry to enjoy or remove it, and the like. Cardigan v. Armitage, 2 B. & C. 207. A saving out of it will defeat the excep tion to that extent. Leigh v. Shaw, Cro. Eliz. 372.

A reservation is properly the retaining of some right or profit to arise from the subject of the demise, which had previously no separate existence. An express reservation is necessary whenever a lessor wishes to retain a right of way, or any other right or control over the demised property. Brunton v. Hall, 1 Q. B. 792; 1 G. & D. 207; 6 Jur. 340.

A seal, in any case where a lease is required by law to be under seal, must be affixed in the manner prescribed by the law of the place which is to govern the particular lease; whether that be an impression upon wax or wafer, or upon the paper on which the instrument is written, or a mere scroll. It is usual, where several persons execute the same instrument, to affix a separate seal for each, but that is not essential, as the seal of one may be deemed adopted by the other or others. See ante, Vol. 2, 494, tit. Deeds.

When in writing, and not required to be under seal, the mere signatures of the proper parties is sufficient. The place of signature is not

usually deemed material, but a statute requiring certain contracts to be "subscribed," has been held to require the name to be actually put at the bottom or foot of the contract. Davis v. Shields, 26 Wend. 341, 494. James v. Patten, 6 N. Y. (2 Seld.) 9, 16. A lease which contains covenants by both parties should be executed by both. Thompson v. Leach, 2 Vent. 198; 3 Mod. 296. They may execute as many copies or counterparts as there are parties, each retaining one.

Witnesses to leases were not required by the common law, but are made necessary by statute in some of the American States. The same may be said as to acknowledgment and recording, for the purpose of making a lease notice to subsequent purchasers or incumbrancers. The omission of the latter formalities will not affect the validity of a lease as between the parties.

Delivery is essential to give effect to a lease and vest the interest intended to be conveyed. This must be to the lessee himself or to some one authorized by him to receive it; but if placed on record for his benefit, his subsequent assent to it renders the delivery valid. Sending by mail to him or to some one for his use, is also sufficient. If delivered in escrow, it will, on its final delivery after performance of the condition, take effect from the time of the first delivery. See Vol. 2, tit. Deeds.

§ 2. Construction of a lease. In this connection only general principles can be stated. A lease is to be construed according to the intention of the parties, and that is to be ascertained, if possible, from the terms of the instrument itself; or, if there be several instruments, from their terms as construed together. Weak d. Taylor v. Escott, 9 Price, 595. When clearly ascertained, that intent must prevail, even though it be in opposition to the strict letter of the contract. Hathaway v. Power, 6 Hill, 453; Tracy v. Albany Exch. Co., 7 N. Y. (3 Seld.) 472. A promise will be construed as the promisor knew that the promisee understood it. Barlow v. Scott, 24 N. Y. (10 Smith) 40. If a word, which is material in order to give other words their proper effect, appears to have been omitted by mistake, it will be deemed inserted. Wight v. Dickson, 1 Dow, 141. Words which are inapplicable or repugnant to the tenancy evidently intended to be created, are to be rejected. Strickland v. Maxwell, 2 C. & M. 539. In a lease by indenture, words are not to be construed most strongly against the one party, or most beneficially for the other, but are to be construed fairly and as those of the party to whom they properly belong. Beckwith v. Howard, 6 R. I. 1. If there is any reasonable doubt as to the meaning of an exception, it is to be construed favorably for the lessee.