Statute of Frauds required writing to assign a lease.
Protection of purchasers against previous non-insurance against fire.
0) 29 Car. II. c. 3 , s. 3.
(p) Stat. 8 & 9 Vict. c. 106, s. 3, repealing stat. 7 & 8 Vict. c. 76, s. 3, to the same effect.
(q) Any assignment of a lease upon any other occasion than a sale or mortgage appears now to be subject to a deed stamp of 10s. Stat. 33 & 34 Vict. c. 97.
(r) Stat. 22 & 23 Vict. c. 85, passed 13th August, 1859.
Leasehold estates may also be bequeathed by will. As leaseholds are personal property, they devolve in the first place on the executors of the will, in the same manner as other personal property; or, on the decease of their owner intestate, they will pass to his administrator. An explanation of this part of the subject will be found in the author's treatise on the principles of the law of personal property (t). It was formerly a rule that where a man had lands in fee simple, and also lands held for a term of years, and devised by his will all his lands and tenements, the fee simple lands only passed by the will, and not the leaseholds; but if he had leasehold lands, and none held in fee simple, the leaseholds would then pass, for otherwise the will would be merely void (u). But the act for the amendment of the laws with respect to walls (v) now provides, that a devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator, or his leasehold estates to which such description shall extend, as well as freehold estates, unless a contrary intention shall appear by the will. The act to which we have already referred (x) contains a provision for the exoneration of the executors or administrators of a lessee from liability to the rents and covenants of the lease, similar to that to which we have already referred with respect to their liability to rents-charge in conveyances on rents-charge (y).
Will of leaseholds.
(s) Stat. 22 & 23 Vict. c. 35, s. 8.
(t) Part IV. Chaps. 3 & 4.
(u) Base v. Bartlett, Cro. Car. 292.
(v) Stats. 7 Will. IV. & 1 Vict. c. 26, s. 26.
Leasehold estates are also subject to involuntary alienation for the payment of debts. By the act for extending the remedies of creditors against the property of their debtors, they became subject, in the same manner as freeholds, to the claims of judgment creditors (z): with this exception, that, as against purchasers without notice of any judgments, such judgments had no further effect than they would have had under the old law (a). And, under the old law, leasehold estates, being goods or chattels merely, were not bound by judgments until a writ of execution was actually in the hands of the sheriff or his officer (b). So that a judgment had no effect as against a purchaser of a leasehold estate without notice, unless a writ of execution on such judgment had actually issued prior to the purchase. And if leaseholds should be considered to be " goods " within the meaning of the Mercantile Law Amendment Act, 1856 (c), then a purchaser without notice was sale at any time before an actual seizure under the writ. And now, as we have seen, no judgment of a date later than the 29th of July, 1864, can affect any land of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority in pursuance of such judgment (d).
Exoneration of executors and administrators of lessee.
(x) Stat. 22 & 23 Vict. c. 35, s. 27.
(y) Ante, p. 322; Re Green, 2 De Gex, F. & J. 121.
(z) Stat. 1 & 2 Vict. c 1l0; ante, p. 83.
(a) Stat. 2 & 3. Vict. c. 11,s.5; Westbrook v. Blythe, Q. B., 1
Jurist, N. S. 85; 3 E. & B. 737. (b) Stat. 29 Car. II. c. 3, s. 16. See Principles of the Law of Personal Property, p. 46, 1st ed.; 47, 2nd ed.; 48,3rd, 4th and . 5th eds.; 50, 6th ed.; 51, 7th ed.
(c) Stat. 19 & 20 Vict. C. 97, s. 1.
In the event of bankruptcy leasehold or any other onerous property may now be disclaimed by the trustee for the creditors, notwithstanding he has endeavoured to sell, or has taken possession of such property, or exercised any act of ownership in relation thereto, and the same, if a lease, shall be deemed to have been surrendered on the same date (e). But the trustee shall not be entitled to disclaim any property in pursuance of the act in cases where an application in writing has been made to him by any person interested in such property requiring such trustee to decide whether he will disclaim or not, and the trustee has, for a period of not less than twenty-eight days after the receipt of such application, or such further time as may be allowed by the Court, declined or neglected to give notice whether he disclaims the same or not (f).
The tenant for a term of years may, unless restrained by express covenant, make an underlease for any part of his term; and any assignment for less than the whole term is in effect an underlease (g). On the other hand, any assurance purporting to be an underlease, but which comprises the whole term, is, by the better opinion, in effect an assignment (h). It is true that in some cases, where a tenant for years, having less than three years of his term to run, has verbally agreed with another person to transfer the occupation of the premises to him for the rest of the term, he paying an equivalent rent, this has been regarded as an underlease, and so valid (i), rather than as an attempted assignment which would be void, formerly for want of a writing (j), and now for want of a deed (k). It is, however, held that no distress can be made for the rent thus reserved (l). But if a tenure be created, the lord, if he have no estate, must at least have a seignory (m), to which the rent would by law be incident; and being thus rent service, it must by the common law be enforceable by distress (n). The very fact therefore, that no distress can be made for the rent by the common law, shows that there can be no tenure between the parties. And, if so, the attempted disposition cannot operate as an underlease(o). If, however, the disposition be by deed, and be executed by the alienee, it has been decided that the reservation of rent may operate to create a rent-charge (p), for which the owner may sue (q), and which he may assign, so as to entitle the assignee to sue in his own name (r). And if this be so, there seems no good reason why, under these circumstances, the statutory power of distress given to the owner of a rent seek (s), should not apply to the rent thus created (t). But on this point also opinions differ (u).