1821. SMITH V. JERSEY. me unintelligible; but, supposing it to be applicable, we have the later case of Core v. Day. The decision of the four learned men on the second question has great weight with me, and I cannot see why it ought not to DoE, dem. guide our judgment on the present occasion. It is well known, that the late learned Lord Chief Justice of the Common Pleas, Sir Vicary Gibbs, thought that decision right, and was of opinion, that the present lease was invalid: he was in office when the present case found its way into the Exchequer Chamber. Burrough J. HOLROYD J. I think that, having due regard to the Holroyd J. true intent and meaning of the indenture of the 2d day of July, 1757, according to the legal construction of the several parts of that indenture, as stated in the special verdict, and having also due regard to the legal effect of all the facts and circumstances found by the special verdict, the demise of the 5th of September, 1803, as the same is stated in the special verdict, is invalid. By the death of Lord Vernon, the lessor, who had an estate in him for life only, that demise became invalid, unless it were made in conformity to one of the powers of leasing contained in the above-mentioned indenture of the 2d of July, 1757. That indenture contains three powers of leasing; one, for a life or lives, or for a term determinable on a life or lives; another, for years not exceeding twenty-one; and the third, for working mines or ore for years not exceeding thirty-one. Each of these powers is clogged with qualifications of two descriptions; one class of which is comparative, or with reference either to the existing or previous state of things, or to usage or custom, or to what can reasonably be had or obtained; the other class is direct and absolute, without any reference or regard either to the existing or previous state of things, or to usage or custom, 1821. custom, or to what can be reasonably had or obtained, or to any matter whatever; these last qualifications are superadded by the creatrix of the power, to be comDOE, dem. plied with at all events, as I think, without reference or SMITH V. JERSEY. Holroyd J. regard to any matter, and not to be varied, changed, or altered by, or at all to depend upon any usage, custom, or state of things, or any matter whatever. The first of the above powers of leasing is that upon which the present question depends, the power of leasing for a life or lives, or for years determinable upon a life or lives. The qualifications, with which that power is clogged, are, as to the reservation of the rents, duties, and services, that they be such as were the ancient and accustomed, or more or as great or beneficial as at the time of the demising were payable, or as much as a just proportion thereof amounts to, according to the value of the premises demised or more, with the exception of heriots. These qualifications are comparative, or with reference, expressly, to the things there expressed; and must be such as, on such comparison or reference, shall be found conformable thereto, and are wholly dependent thereupon. But the other class of qualifications superadded to this power is direct and absolute, and without reference to and wholly independent, as it seems to me, upon any other matter except what the law requires, and to be complied with at all events, whatever may be or may have been any usage, custom, or state of things whatever, These other qualifications are, that the rents, duties, and services be incident to and go along with the reversion and remainder; that the leases contain a power of re-entry for non-payment of the rent reserved, and not contain any express clause freeing the lessees from impeachment of waste, and that the lessees' seal and deliver a counterpart of the lease. It is upon one of these direct, abso lute, 1821. SMITH V. JERSEY. lute, and independent qualifications of that power, that the present question has arisen. That qualification is in the following words: "So as there be contained in every such lease a power of re-entry for non-payment DoE, dem. of the rent thereby to be reserved." This qualification being expressed in words that are direct and absolute, Holroyd J. and without reference to any former leases, or to any prior or, then existing state of things, or former management or disposition of the property, the fact found by the jury, with respect to the former leases, cannot, I think, vary the legal construction to be given to this qualification. There is, in the words, no latent ambiguity, which those former leases either raise or remove. If the words be not clear and explicit in themselves, their ambiguity, if any, is upon the face of the deed itself, and they cannot, I think, by law be allowed to crave in aid any former usage to vary or alter their construction: and this more especially in the case of such a deed as the present, wherein the parties expressly direct, that a reference to the then existing or former usages should be had recourse to, where they intend that either of them should be called in aid on the subjectmatter of these qualifications. Besides, it has been held by the Court of King's Bench, in Iggulden v. May (a), as well as by the Lord Chancellor in the same case (b), ratifying similar doctrine that had before been held both by Lord Alvanley and Sir William Grant, when Masters of the Rolls, on covenants for renewal of leases, that the construction of deeds cannot be varied by the acts of the parties; and, therefore, various other leases, that had before been successively made by the owners of the inheritance for the time being, could not be taken in aid to construe the meaning of a covenant for renewal, The instability and uncertainty introduced into rights (a) 7 East, 237. (b) 9 Ves. jun. 329. of 1821. SMITH V. DOE, dem. of property created by deed, by letting in such extrinsic evidence, and the mischief arising therefrom, would apply equally, as it seems to me, to the present case. The present question arises in a case where the exercise of the power is by a person (namely, Lord Vernon) Holroyd J. who, previous to the creation of the power, was a stranger to the estate; and in a case, where this qualification of the power given to him by his wife, must be taken to have been inserted as well for the benefit of herself, as of the several other persons in remainder, in derogation of whose rights his exercise of the power would operate, so long as the lease should continue valid after the extinction of his life estate. It would operate in derogation of her and their rights, by depriving them, successively, of the actual occupation and enjoyment of the demised premises themselves, which they would otherwise be entitled to have, and giving them, successively, in lieu thereof, a rent or rents such as the power required, however inadequate the same might be. The power given to the tenant for life to lease for a term that may last beyond his own life, is, agreeable to what is said by Lord Ellenborough in Coxe v. Day (a), for the benefit of the tenant for life; the qualifications only, as he there, also, says, are for the benefit of those in remainder: and, in this case, those in remainder, who are to be protected by these qualifications (except the creatrix of the power herself), are not parties or privies, but are strangers to the deed; and, therefore, as to them, the words of the deed are to have their full operation for their protection against the tenant for life, who executed the power, and against whose act, which would or might be to their detriment, they were to be protected by this qualification. The very intent of prescribing these requisites is to protect the several (a) 13 East, 127. remainder 1821. SMITH remainder-men from the discretion of the tenant for life in the exercise of this power of leasing given to him. The object of the qualification is to secure to them the rent itself, and not to give them any substitute whatever Dog, dem. in lieu thereof, other than and except the land itself, for which the rent was to be paid. For this purpose, this qualification looks to and specifies some occasion or event, and that, a simple unqualified one, namely, the non-payment of rent, not under any particular circumstances only, but generally, whenever there is a nonpayment of rent: that is to say, it looks to and specifies the default of the lessees by the non-payment of the rent as the occasion or event, on which those entitled to the rent to be paid for the land, shall, for want of the rent, have the land itself, the quid pro quo the rent was to be paid. Whenever that event or default arises, the case then exists, I think, on which the land was to be had for that default, without any other matter being to be superadded thereupon, except what the general rules of law, independently of particular terms of contract, would require, such as those requiring in a particular manner and form, a demand of the rent due. The words applying to the power of re-entry required to be contained in the lease, are "a power of re-entry for non-payment of the rent thereby to be reserved;" that is, as I think, such a power as will authorize the party, whenever there is a non-payment of the reserved rent, to re-enter. That is the express cause, on account of which he is to be at liberty to re-enter, which liberty must, I think, be co-extensive and co-existent with that cause; and that cause which is non-payment of rent, (such, I mean, as will authorize a re-entry) exists from the very instant that there is such a default of payment as the law requires to authorize a re-entry: and that default of payment equally exists from the moment of such a demand as the law requires being made of the rent VOL. II. O o due V. JERSEY. Holroyd J. |