1821. SMITH V. JERSEY. Bayley J. back as the Year-books (a), it is established, that, under such powers, the time to demand the rent to warrant a re-entry is at the end of such week, month, or halfyear, and not on the preceding rent-day; so that it is DOE, dem. consistent with a power of re-entry, that it should not be immediate, but postponed till some given time after the rent should have accrued; and in Godbolt (b) I find the instance of a power of re-entry, if the rent be behind, and there be no sufficient distress upon the land; and, from these instances I infer, that a power of re-entry, if the rent shall be behind 15 days, and there is no sufficient distress upon the premises, is "a power of re-entry for non-payment of rent." It may not be the most beneficial species of power; it may be clogged with what, in some cases, may, by possibility, produce an inconvenience; but still it is a power. And, if it be a power of re-entry for non-payment of the rent, this lease does contain what (in the words of the settlement) is "a power of re-entry for non-payment of rent;" and persons who impeach the lease are then driven to the argument, that, though it be a power, yet, it is not such a power as, having due regard to the intent and meaning of the indenture of the 2d July, 1757, that indenture according to legal construction requires. Now this argument assumes, that the words are capable of more than one meaning, if they are not so clear and precise and definite, as to admit but of one sence; and, it was to point out this assumption, that I have been troubling your Lordships upon what might, otherwise, have appeared nearly a self-evident proposition. The words are "a power of re-entry for non-payment of the rent." The law knows of such many powers; some more beneficial, some less so -- some qualified some not (a) 20 H. 6. 30. 31. 6 H. 7. 3. Brooke, entre congeable, pl. 90. (b) 110, pl. 130. some 1821. SMITH V. DOE, dem. Bayley J. some to hold the land till the rent is satisfied out of (a) Co. Litt, 203• A. paid 1051. A half year's rent, therefore, would be 17. Os. 9d. only; and, for such a rent, a delay of 15 days was not likely to occasion the reversioner much probability of loss; it was not likely the premises would ever be so completely deserted as to have no sufficient distress upon them; nor was the rent such as could be any inducement to the tenant to replevy. For such a rent, the power in question to re-enter at the end of fifteen days, if there were no sufficient distress upon the premises, appears to me an adequate and reasonable security; and I should be disposed to think that, for such a rent, a clause without giving any days of grace, would be unreasonable; because I think the immediate exercise of such a right would be oppressive. Nor do I think it unreasonable to deny the reversioner the power of re-entry where there is a sufficient distress upon the premises, because the legislature did not think it unreasonable to deny the landlord the benefit of 4 Geo. 2. c. 28., where there was such a distress; and because a landlord can have no difficulty in ascertaining whether there be such a distress or not. He has a right to enter with his bailiff upon the premises, to see whether there be such a distress; and, according to Godbolt (a), if there be nothing that he can see upon the premises to distrain, he is warranted in concluding that there is no distress there. Godbolt's words are, "It was holden by all the Justices, that if a man make a lease, rendering rent upon condition, that, if the rent be behind, and no sufficient distress upon the land, the lessor may re-enter; if the rent be behind, and there be a piece of lead or other thing hidden in the land, and no other thing there to be distrained, the lessor may re-enter; for the distress ought to be open and to be come-by." I am, therefore, of opinion that, without looking beyond the indenture of July, (a) 110. 1821. SMITH v. DOE, dem. Bayley J. 1821. SMITH บ. DOE, dem. Bagley J. 1757, the power in question is, within the true intent and meaning of that indenture and the legal construction thereof, as large and beneficial a power of re-entry as that indenture required. But, I apprehend, that, in judging of the true intent and meaning of the indenture of July, 1757, in this respect, we are at liberty to look at the state of the property at the time that indenture was made, and see to what restrictions it was then subject, and what rights the settlor then had. The settlor has used the indefinite words, "a power of re-entry." By shewing, as I do, that there are many such powers, I shew, that there is an ambiguity in those words, either latent or patent; and may I not refer to the existing state of the property at the time these words were used, to see what was the intention of the settlor, and in what sense she used those words? This is the first time I have ever known it doubted, whether the estate, and interest, and powers of the settlor over the estate he was settling was admissible in proof. I am not offering declarations of what the party said she meant; I am not construing a legal instrument by the acts of the parties, or by their understanding upon it (as in Cooke v. Booth (a)) ; but, by shewing the circumstances and situation of the party, and the estates and interest she had at the time, I am enabling the House to judge what, in legal construction, was her meaning. And, I am not aware, that there is any legal authority to exclude the evidence of such circumstances and situation. Doe v. Calvert (b) certainly is not. That case only decided, that a lease of 29th March of tillage land from 13th February preceding, of pasture land from 5th April, and of the residue from 12th May, reserving the rent in April, was substantially a lease from April, and, therefore, a lease not in pos (a) Cowp. 819. (b) a East, 376. session session but in reversion; and the custom of the country, that these were the ordinary periods of letting was admitted without objection, and argued upon without objection, but was held not to contract the power so as to warrant a lease before April. If a man makes any deed or will, have I not a right to know what estate he had at the time he made such deed or will; and, does not the construction vary, in some cases, according to the estate? If I grant a man an estate for life, without saying whether for his life or mine, is not evidence admissible to shew what interest I had in the premises? For, if I was tenant in fee, he will take an estate for his own life; if I was tenant in tail or for life only, he will take for mine (a). If a man bequeath me 10,000l. 3 per cent. consols., it will be a specific legacy if he have that stock at the time; - not specific, if he have it not, Selwood v. Mildmay (b). Evidence is, therefore, admissible in such case to shew what was the state of his property at the time he made his will, and the construction upon the will is one way or the other, according to the result. In Masters v. Masters (c), where a lady by her will gave 57. to each of two hospitals in Canterbury, and by her codicil gave 51. per annum to "all and every the hospitals," the latter legacy would have been void for uncertainty; but it appearing (which must have been by extrinsic evidence) that the testatrix lived at Canterbury for many years, and died there, and that she took notice by her will of two Canterbury hospitals, the general words "the hospitals" were limited and considered as intended for "all the hospitals in Canterbury." But the case to which I wish to call your Lordships' particular attention is Fonnereau v. Poyntz (d). The testatrix, there, gave to Mary Poyntz the sum of 500l. (a) 1 Shepp. Touch. 88. (c) 1 P. Wms. 421. stock 1821. SMITH ข. DOE, dem. Bayley J. |