157 



LEASE. 



LEASE AND RELEASE. 



188 



I 



quence of uncertain tenure and of bad leases. It is affirmed by the 

 best authorities that the amount of capital which is now applied to the 

 cultivation of the land in England is very inadequate, that a large part 

 of the farmers have not sufficient capital to improve their lands, nor 

 the necessary skill and enterprise ; and it is maintained that these 

 evils are mainly owing to the want of a sufficient security of tenure or 

 the want of a lease, or, where there is a lease, to the absurd restrictions 

 with which many of them abound. 



It has been said, and truly enough, that there is no advantage to the 

 landlord in granting a lease to bad cultivators, and that there are many 

 such. Such a lease would not indeed be any advantage to the farmer 

 himself or the community in general ; but he who has land to let, and 

 will let it on terms that are mutually profitable to the landlord and 

 the tenant, will be much more likely to get a tenant of competent skill 

 and capital, than he who gives the farmer an uncertain tenure or binds 

 him in the fetters of a bad lease. 



The preservation of the game and the enjoyment of the pleasures of 

 the chase, or of the profits derived from the wild animals, is another 

 object which some landlords secure by their lease with as much 

 minuteness and strictness as they do their rent. [GAME LAWS.] Thus, 

 in addition to getting a rent from his land, the landlord often wishes 

 to command the votes of his tenant and secure his game. With 

 reference to these objects and certain other imaginary advantages 

 which he purposes to secure by directing the mode of cultivation, he 

 has a lease drawn up with conditions, restrictions, penalties, an'd feudal 

 services, which no care on the part of the fanner can prevent him 

 from breaking in some particular, and which no man of capital, skill, 

 and independent feeling would consent to sign. 



But these farming leases are often copies of old leases, made in 

 other days, and are unsuited to the present state of agriculture. The 

 things which they require not to be done and those which they require 

 to be done, are often inconsistent with good agriculture, or, in other 

 words, thf y prevent the land from yielding that amount of produce 

 which it would yield under the best system, not only without 

 thereby being impoverished, but with the certainty of permanent 

 improvement. Ignorance on the side of the landlord of his true 

 interest is one of the reasons why many of these absurd leases still 

 exiat. 



There can be no principle in the letting of land, if the object be simply 

 to secure the best rent to the landlord and the permanent improvement 

 of the land, which makes it different from the letting of any other 



:iecc of property. The good farmer hires land to cultivate, with the 

 ope of deriving profit from the application of his skill and capital. 

 He does not want the advice and direction of another man : he trusts 

 to himself. The first object of the landlord is to get as much rent as 

 his land is worth, and to secure it against deterioration during the 

 tenant's occupation. The terms of the lease, then, should simply be 

 the payment of the rent agreed on, and the observance of such con- 

 iliHon* as are found by experience and known to practical agriculturists 

 to be necessary to secure the permanent value of the landlord's land. 

 It is admitted by all reasonable people that the landlord should have 

 ample security by the lease for his land being given up to him at the 

 end of the lease in as good condition as he gave it to the tenant. The 

 tenant wants no directions from the landlord, and no conditions in his 

 favour, beyond the simple condition of being allowed to cultivate the 

 land in the best way that he can for his own profit during a period 

 sufficiently long to secure him a return for his outlay; and he acknow- 

 ledges that he must submit to all conditions in favour of the landlord 

 which are not inconsistent with his free cultivation, and which shall 

 secure the permanent value of the landlord's property. Perhaps many 

 landlords who now grant hard leases would admit this general principle : 

 but when they came to details, they would insist on many conditions 

 as necessary to secure their permanent interest, which a good farmer 

 would object to as not necessary for that purpose, and also as incon- 

 sistent with his profitable cultivation. 



The framing of such a lease as we have described in general terms, 

 must be the joint work of intelligent and liberal landlords and of good 

 tenant farmers. It may require some time, some more experience, 

 and suggestions from many quarters before such a lease is got into the 

 best form. But it is an object worth the consideration of all persons 

 interested in the cultivation of the land, and some attempts in this 

 direction have been made already. 



The covenants contained in a lease, however few they may be, often 

 occasion difficulty and dispute upon the expiration of the tenancy. 

 The landlord may often claim more than his due, and the tenant may 

 be disposed to do less. These difficulties are not peculiar to farm 

 tenancies ; they occur continually in the case of dwelling-houses let for 

 a term of years upon the condition of keeping them in good repair. If 

 such disputes cannot be settled amicably, or by reference to arbitra- 

 tion, the only way is by legal proceedings. It has been suggested that 

 nose of dwelling-houses in large towns like London, some easy 

 mode of finally settling such disputes might be established. In such 

 cases, the evidence of surveyors is the evidence on which a jury must 

 give their verdict in case of leg.il proceedings ; and it would be quite 

 as satisfactory to all parties, if the evidence that is submitted to a jury, 

 for their judgment, were submitted to a few competent persons to 

 be chosen in some uniform manner, and whose decision should be 



In 1845 an act was passed (8 & 9 Viet. c. 124)" entitled ' An Act to 

 facilitate the granting of certain Leases.' Its object is to substitu te 

 abbreviated forms for those previously in use, and it is provided that m 

 taxing any bill for preparing and executing any deed under the act, th e 

 taxing officer, in estimating the proper sum to be charged, is to con- 

 sider ' not the length of such deed, but only the skill and labour 

 employed, and the responsibility incurred in the preparation thereof.' 

 It is enacted in section 4, ' That any deed or part of a deed which shall 

 fail to take effect by virtue of this act shall nevertheless be as valid 

 and effectual, and shall bind the parties thereto, so far as the rules of 

 law and equity will permit, as if this act had not been made.' There 

 are schedules to the act, one of which gives, in column 1, short forms 

 of expression which may be used in place of the ordinary expressions 

 in leases, which are contained in column 2 ; and it is enacted by sec- 

 tion 1, " That whenever any party to any deed made according to the 

 forms set forth in the first schedule of this act, or to any other deed 

 which shall be expressed to be made in pursuance of this act, shall 

 employ in such deed respectively any of the forms of words contained 

 in column 1 of the second schedule hereto annexed, and distinguished 

 by any number therein, such deed shall be taken to have the same 

 effect and be construed as if such party had inserted in such deed the 

 form of words contained in column 2 of the same schedule, and dis- 

 tinguished by the same number as is annexed to the form of words 

 employed by such party ; but it shall not be necessary in any such 

 deed to insert any such number." This act does not extend to Scot- 

 land. The amount of words saved by this act is not sufficient to 

 compensate for the difficulties that miy arise from persons using the 

 abbreviated forms in cases where they may not intend them to have 

 the full meaning which this act gives to them. He who wishes to 

 guard himself either as a landlord or tenant by suitable covenants 

 will do better to express his meaning at full length, without 

 availing himself of the abbreviated forms which this act invites him 

 to use. 



Leases in general require either an ad valorem stamp, now of very 

 moderate amount, or the common deed stamp, without which the 

 instrument cannot be given in evidence. 



LEASE AND RELEASE. Recent legislation has swept away the 

 mode of conveyance by lease and release, which was formerly almost 

 universal. The importance which this legal device formerly had in the 

 system of conveyancing, makes it necessary to give an account of it 

 here. There are various kinds of release, but that intended in the 

 phrase in question, is the relinquUhment of some right or benefit to a 

 person who has already some interest in a tenement, and such interest 

 as qualifies him for receiving or availing himself of the right or benefit 

 so relinquished. (Burton's Law of Real Property, 45.) Before the pass- 

 ing of the Statute of Uses " it appears that a lease for two or three 

 yuar.-i was sometimes made, and perfected by entry of the lessee, for 

 the single purpose of his afterward receiving a release of the reversion. 

 Thus arose a sort of compound conveyance, called a lease and release, 

 which, if the grantor were seised in fee simple, had the same effect as a 

 feoffment." (Ibid., 62.) 



When it had been determined that the Statute of Uses operated so 

 as to give an estate in laud without entry, a lease for a year by bargain 

 and sale was made by the vendor to the purchaser. A use was thus 

 raised to the bargainee, without any enrolment, which in the case of 

 freehold interests was required by the statute of enrolments ; and the 

 use thus raised or created for the bargainee was converted, by the 

 Statute of Uses, into a legal estate Thus the bargainee became 

 immediately capable of accepting a release of the freehold and rever- 

 sion : and a release was accordingly made to him, dated the day next 

 after the day of the date of the bargain and sale. The release made to 

 a purchaser who has an estate by virtue of the bargain and sale may 

 either be a release at common law as referred to in the passage just 

 quoted, or it may be a release under the Statute of Uses, which is 

 now always meant when we speak of the conveyance called a lease 

 and release. 



This conveyance is said to have been first contrived by Serjeant 

 Moore, at the request of Lord Norris, in order that some of his kindred 

 should not know, by any search of public records, what settlement he 

 should make of his estate. The validity of it was formerly doubted. 

 But it was resolved (18 Jac. I.) by the chief- justices Montague and 

 Howard, and chief-baron Taufield, that upon a deed of bargain and 

 sale for years of land, though the bargainee never entered, if after- 

 wards the bargainer makes a grant of the reversion, reciting the lease, 

 to divers uses, it was a good conveyance of the reversion, ( Luticich v. 

 Alilt-in, Cro. Ja., 604.) And in a subsequent case, where there was a 

 bargain and sale for years, followed by a release, judgment was given, 

 ' that the lease being within the Statute of Uses, there was no need 

 of an actual entry to make the lessee capable of the release ; for, by 

 virtue of the statute, he shall be adjudged to be in actual possession.' 

 (Barker v. Kea'e, 2 Mod., 249.) 



In consequence of this interpretation of the law lease and release 

 became the most common assurance for the transfer of freehold 

 estates. 



Only a nominal consideration was mentioned in the bargain and sale ; 

 and it was held that even a reservation of a pepper-corn rent was a 

 sufficient consideration to raise a use by a bargain and sale on which to 

 found a release, 



