1821. SMITH V. DOE, dem. Richards C.B. hold or inheritance shall belong, to re-enter: and the question before your Lordships is, whether this proviso is agreeable to the power, which directs, that, in the lease, there should be a power of re-entry for non-payment of rent? There are two objections stated; the first is, that, in the lease, the time for the payment of the rent is extended to 15 days, whereas it is insisted, that the reentry ought to have been immediate, and at the time when the rent was reserved to be payable. The second objection is, that the re-entry is given in reference to a want of a sufficient distress. My Lords, it is clearly established, that the construction of powers is to be governed by the intention of the parties who make them, that intention to be ascertained by a fair interpretation of the language in which the power is worded; in this case, Lord and Lady Vernon, uniting in marriage, may be considered, under their settlement, as owners of the estates; though, before marriage, it was her Ladyship's property. By this settlement, they propose to grant leases to all who choose to take them upon the terms mentioned in the powers; one of which, relating to the property under consideration, is, that the lease should contain a condition of re-entry for non-payment of rent. My Lords, it has been considered and has been ruled in many cases, that, in the construction of powers, the courts ought to be as liberal as may be; and more liberal in favour of a lessee where the power is executed by the person, out of whose inheritance the estate issues, than when executed by a third person, a stranger. It has been contended, that, in this case, the estate moving originally from Lady Vernon, Lord Vernon was to be considered as a stranger, and, that there ought, therefore, to be a greater strictness applied with regard to the lessee, than if he was originally the owner of the estate; but I beg of your Lordships 1821. SMITH V. JERSEY.. Lordships to observe, that, in this case, Lord and Lady Vernon had, each of them, when in possession, the same power to grant leases; the words of the power are precisely the same as applied to each of them, and must DoE, dem. be construed as much to apply to a lease made by Lady Vernon, as to this lease made by Lord Vernon; and, Richards C. B、 therefore, they must be construed with the same attention to the meaning, as if the words were applied to a lease by one or the other, and we are bound to consider, in construction, the lease in question, as if made by Lady Vernon, from whom the estate originally moved, and who may fairly be considered as in a situation similar to the case which I am about to mention, and, upon which, some of your Lordships can have no doubt. Suppose a landlord, seised in fee simple, enters into an agreement in writing with a man to grant him a lease for a number of years, with a right of re-entry for non-payment of rent at the time specified. Suppose a bill filed in a court of equity by one or the other of the parties for a specific performance of the agreement. The court would refer it to a master to settle the terms of the lease; and any gentleman, who has ever sat in a court of equity, must admit, that the court will, if applied to, direct the insertion of a power of re-entry upon reasonable and usual terms; and, unquestionably, extend the time of re-entry to a reasonable time beyond the time fixed for payment of the rent; referring at the same time to a sufficiency or deficiency of distress, as in the present lease. I mention this case of an agreement, because it seems to me to apply very closely to the case before your Lordships. Courts of equity adopt the same principle and practice in hundreds of instances, such as leases by guardians of infants, committees of lunatics, and the like. The court so acts, because it executes the intention of the parties: and a court of law, in construing powers, is equally bound to adopt the Rr 3 inten 1821. SMITH V. DOE, dem. JERSEY. intention of the parties creating the power; and there is no difference in the construction of words in a power, and of words in any other instrument. My Lords, suppose Lord Vernon had agreed to grant a lease pursuant to his power, and had not granted it; and there Richards C. B. was a bill in equity filed to compel him, or by him, to compel the person who had agreed, to execute the lease according to the power; the court would, I doubt not, direct a lease to be executed with a power of reentry upon the usual and reasonable terms, which would be according to its construction, according to the intentions of the parties creating the power; and, I presume, the lease to be executed under the orders of the court would be similar to that which has been executed in this case. I am more willing to refer to the proceedings of a court of equity, because I am speaking in the presence of those, who have, perhaps, more knowledge and experience, than any persons of the present or any former times. My Lords, I understand from extensive information, and my own experience, such as it is, justifies me in believing, that the practice of all conveyancers has been consistent with what I have stated now, so far as the extension of the time is concerned; and, if it be so, it certainly must be considered as founded upon the intention which is ascribed to the party making the power; for, it is obvious, that, if the power, as it is contended, required a right of re-entry at the moment the rent was due, the enlargement of the time would be, in some degree, unjust to the reversioner, as it would cause a postponement of the day of payment: but the practice has been, I believe, so general, that it must be strong evidence of the intention ascribed; and so inveterate, that it would be very highly dangerous to affect it: and I have always understood that the Judges have always considered an universal or very general practice amongst convey conveyancers a sufficient ground for their decisions, though they did not entirely approve of the principles on which the practice had proceeded. 1821. SMITH บ. JERSEY. On this point, viz. the extension of the time, I have DoE, dem. been always inclined to support the lease, and I am of opinion that the objection ought not to prevail. With respect to the other objection to the lease, viz. that a re-entry cannot be had unless no sufficient distress can be had upon the premises, I do not find, from the best inquiry that I have made, that any very general practice or understanding upon the subject, namely, with respect to the execution of powers, has prevailed amongst the conveyancers, and I have not been able to find that any decision has yet taken place, by which I am, in a judicial point of view, bound to abide. I must confess, that I was, for some time, convinced by the reasoning so strongly pressed by some of my learned Brothers, and that I formed an opinion on this part of the case agreeable to theirs, from whom I am now under the necessity of dissenting; but your Lordships' commands have obliged me to re-consider the case, and I feel great consolation in having had the opportunity, as I hope that I have been able to take a more correct view of the subject. The objection to the part of the lease, with which I am now troubling your Lordships, is certainly greatly supported by the inconveniences imposed on the reversioner; but, if I am right in deeming the lease good, notwithstanding the extension of the time for the payment of the rent, it must be because it is agreeable to the true intent and meaning of the power, though there are no words that expressly allow that extension. If so, it may be right to presume, that the words used in the power meant more than is expressed, and that any right of re-entry on reasonable and usual terms, so far as the extension of the time is concerned, is good. If Rr 4 So, Richards C. B. 1821. SMITH JERSEY. so, what prevents us from enquiring whether the other terms are reasonable and usual, I mean with respect to the distress; and from holding, that, if they are usual DOE, dem. and reasonable, they are within the power? It cannot, I think, be said, that the circumstance of the want of a Richards C.B. sufficient distress can be considered as imposing any condition either not reasonable or not usual. Every one's experience shows, that in leases in general, it is not only usual, but most general, and it cannot be supposed to be otherwise than reasonable; and the leases produced in evidence, which, I think, were properly received, prove the existence of this clause in all of them, as applied to the power. It is observable, however, my Lords, that the power now under consideration is the first in the settlement: it requires, in very general terms, that, in every lease pursuant to it, there should be a power of re-entry for non-payment of rent, or because the rent is not paid; it does not specify any qualification or condition, and only requires that clause of re-entry without more, excepting for non-performance of the covenants. Now, my Lords, it is clear that the clause does contain a power of re-entry for the non-payment of rent, than which nothing in the world can be more general and unrestricted; and under words so general, I humbly conceive, that there is in the lease a clause of re-entry on reasonable and usual terms. In a condition of re-entry, all that the law requires is to secure the payment of the rent, and re-entry is, as it were, penal; and, therefore, the clause in this lease, under the general words of the power, is nothing more than what the law would enforce and require; and therefore the clause is exactly agreeable to the power, as it is reasonable and usual. That the real object of the power of re-entry is to secure the payment of rent, is quite obvious; for a court of equity, acting on reasonable grounds, has always prevented |