Stratford v. Lord Aldborough, 1 Ridgw. P. C. 231. Campbell v. Leach, Ambl. 740. Sugd. Pow. App. No. 13: nor in these cases can any line be well drawn as to the quantum of excess or defect in the execution of the power. Therefore a lease to commence the day after the date of the deed, would be equally had with a lease to commence at fifty years from the date. Sugd. Pow. 368. With regard, however, to the effect of an excessive execution of a power of leasing, it is observable, that where there is a complete execution, and something ex abundanti added, which is improper, there the execution shall be good, and only the excess void; but where there is not a complete execution of a power, and the boundaries between the excess and execution are not distinguishable, it will be bad. Per Sir Thomas Clarke, 2 Ves. 644. Et vid. 13 Ves. 576. Thus, if a man having a power to lease for twenty-one years lease for forty, that will be good in equity pro tanto, because it is a complete execution of the power, and it appears how much he has exceeded it, ibid. et vid. Parry v. Brown, 2 Freem. 171. 3 Ch. Rep. 610. Nels. Ch. Rep. 87. Anon. 2 Freem. 224. Barnard. 116. Campbell v. Leach, supra: though the excess would render the lease void at law. Campbell v. Leach, supra. Roe v. Prideaux, 10 East. 158. Where, however, a distinct limitation is superadded, it will be merely void, and will not affect a prior valid appointment, even at law; as if under a power to lease for twenty-one years, a lease be accordingly made for twenty-one years, and by the same deed, the donee limit a further term in this manner, viz. and from and after the term aforesaid for one year more, the power will be well executed by the first limitation, and the excess will be surplusage not to be regarded. Fitzg. 157. 2 Sch. & Lef. 332. Commons v. Marshall, 7 Bro. P. C. 111. Sugd. Pow. 546. Where a tenant for life, with power of leasing, grants a lease for a term absolute, without referring to or mentioning his power, as the lease, if it be supplied out of his interest, would expire with his life, it shall, therefore, operate as an execution of the power, Campbell v. Leach, supra. et vid. 10 Mod. 36: though, if a lease comprise fee-simple estates as well as estates subject to the power, it seems a nice question, whether the deed shall enure by fractions, so as to be a lease out of the interest as to the fee-simple lands, and an appointment as to the rest. See Bibell v. Dringhouse, Mo. 645. Sugd. Pow. 290, 291. On the other hand, if a tenant for life, with a power of leasing, refer to his power, and in execution of it grant a lease to a person having an existing valid lease, although the power prove to be badly executed, yet the new lease shall not, as between the lessee and the remainder-man, be construed to have enured out of the estate for life of the lessor, because under that construction, the existing valid lease would be merged by a surrender in law, to the prejudice of the lessee. Røe, d. Earl of Berkeley v. Archbishop of York, 6 East. 86. With respect to agreements to execute a lease :-In the case of Harnett v. Yielding, where a man, with a power of leasing for twenty-one years at rack-rent, agreed to execute a lease for twenty-one years, and a further lease for twenty-one years at any time during his life, consequently to excente a lease for twenty-one years, whatever might be the increased value of the property at the time of the lease granted; Lord Redesdale considered this to be an agreement to act in fraud of the power, and held that the purchaser was not entitled to a specific performance even pro tanto. 2 Sch. & Lef. 549. But Mr. Sugden observes, that it seems open to contend, that if the lessee is willing to take such a lease as the party can grant without risk to himself or injury to the remainder-man, equity must specifically perform the agreement pro tanto. Sugd. Pow. 347. Treat. Purch. 4th edit. 177. 241. But where the party cannot grant the lease required so as to bind the inheritance, the court will not decree a specific performance, by directing an invalid lease to be executed, which might incumber and embarrass those entitled to estates in remainder. Ellard v. Lord Llandaff, 1 Ball. & B. 241. O'Rourke v. Percival, 2 Ball. & B. 58. And generally, where a man, after entering into a contract for a lease, commits a felony, equity will not enforce the agreement. See Willingham v. Joyce, 3 Vcs. 168. So, if the tenant has treated the land in an unhusbandlike manner, and has been guilty of various breaches of covenant, for which the lessor had a right of re-entry, the court will not decree a specific performance in his favor. Hill v. Barclay, 18 Ves. 63. Insolvency also, admitted and not cleared away, is a weighty objection to a specific performance of an agreement for a lease. Buckland v. Hall, 8 Ves. 95. O'Herliky v. Hedges, 1 Sch. & Lef. 130. And it seems that the assignee of a bankrupt cannot compel a landlord speci fically to perform an agreement to grant a lease to the bankrupt. See Weatherall v. Geering, 12 Ves. 514. Franklin v. Lørd Brownlow, 14 Ves. 550. And it is also observable, that a lease will, in equity, be set aside, where it has been obtained by surprise or fraud, provided there has been no laches. See Smyth v. Smyth, 2 Mad. Rep. 75. But though on a bill for the specific performance of a contract, the court has often taken great latitude in refusing it; yet when a party, under no distress or incompetency, makes a contract, it must be a very strong case, to induce a court to rescind it. Ib. 89.-[Ed.] CHAP. XXXIX. SAME SUBJECT. OF EXCHANGE. Of what things an exchange (A) may be made (which was 50 b. 1. Of what things an a conveyance frequent in former times) is to be seen and exchange may be made. herein many things are to be observed. First, that the things exchanged (a) need not to be in at the time of the exchange made. As if I grant a newly created out of my lands in exchange for the manor Dale, this is a good exchange (1). (Hob. 41.) esse rent of the time of exchange. Secondly, (b) there needeth no transmutation of possession, and therefore a release of a rent, or estovers, or right to land, in exchange for land, is good (2). The things (c) exchanged need not be of one nature, so they concern lands or tenements, whereof Littleton here speaketh. As land for rent or common, or any other inheritance which concern lands or tenements, or spiritual things, as tithes, &c. for temporal, and tenure by a divine service for a temporal seignory, &c. But annuities or such like (1) But in one of the books cited by Lord Coke, the opinion is, that both of the things exchanged ought to be in esse at the time of the ex change. See 9 E. 4. 21.-[Hargr. (2) See as to this Fulb. Paral. (A) An exchange is defined to be, a mutual grant of equal interests, the one in consideration of the other. 2 Bl. Com. 323. As where a man is seised or possessed of land in fee-simple, fee-tail, for life, or years, and another is, in like manner, seised or possessed of other lands, and they do exchange their lands, the one for the other. And in this there is a double grant; for each of them grants that which is his, to the other. Infra, 50 b. It appears here, and from the many precedents of deeds of exchange inserted in Mr. Madox's Formulare, that this mode of conveyance was formerly much in use, though it is not now so frequent. The circumstances requisite to an exchange, and its effect and operation, will be considered in the course of this chapter.-[Ed.] S E. 4. 10. 9 E. 4. 21. 14 H. 8. 20. (Post, 366 a.) Transmutation of possession not requisite to an exchange. (1 Rol. Abr. 812.) (b) 6 E. 56. 30 E. 1. Esch. 2. 7 H. 4. 34. 3 E. 4. 11. The things need not be of the same nature, so as they concern lands or tenements. (c) 9 E. 4. 21. 9 E. 3, 56. 21 E. 3. 6. LITTLETON. which charge the person only, and do not concern lands or tenements, cannot be exchanged for lands or tenements (B). AND note, that in exchanges it behoveth, that the estates which both parties have in the lands so exchanged, be equal; for if the one willeth and grant that the other shall have his land in fee-tail for the land which he hath of the grant of the other in fee-simple, although that the other agree to this, yet this exchange is void, because the estates be not equal. "Although that the other agree to this, yet this exchange is void." The agreement of the parties cannot make that good which the law maketh void. IN the same manner it is, where it is granted and agreed [Sect. 65. 50b.] between them, that the one shall have in the one land fee-tail, and the other in the other land but for term of life; or if the one shall have in the one land fee-tail general, and the other in the other land fee-tail special, &c. So always it behoveth that in exchange the estates of both parties be equal, viz. if the one hath a fee-simple in the one land, that the other shall have like estate in the other land; and if the one hath fee-tail in the one land, the other ought to have the like estate in the other land, &c. and so of other estates. But it is nothing to charge of the equal value of the lands; for albeit that the land of the one be of a far greater value than the land of the other, this is nothing to the purpose, so as the estates made by the exchange be equal. And so in an exchange there be two grants, for each party granteth his land to the other in exchange, &c. and in each of these grants mention shall be made of the exchange. But it is not necessary that there should be equality in value; 50 b. Estates. Vid. sect. 650. "In exchanges it behoveth, that the estates be equal, &c.” Equality in lands is threefold, viz. First, equality in value. (B) See acc. 1 Wood. 740. Lilly's Conv. 188. 4 Com. Dig. 104. Exchange (A 1). Vin. Abr. Exchange (D). Shep. Touch. c. 16. p. 293, 294. With respect to the persons who may exchange:-All persons who are capable of conveying away their lands, may, of course, exchange them for others; and if an infant exchanges lands, and enters on those acquired by the exchange, and continues to hold them after he attains his full age, the exchange is become perfect, for it was not originally void, because the entry was equivalent to livery, and also in respect of the recompence, but only voidable. 4 Cru. Dig. 144, 145. Infra, 51 b. But coparceners, joint-tenants, or tenants in common, cannot exchange with each other, before partition, their possession being till then undivided. Shep. Touch. 292. Ante, vol. 1. p. 718. n. (R).—[Ed.] *Secondly, equality in quantity of estate given and taken. Thirdly, equality in quality or manner of the estate given and #51 a. taken. But as Littleton saith, equality in value of lands in ex- nor equality in quality. change is not requisite; neither equality in the quality or manner of the estate. And therefore if two joint-tenants give lands jointly to two men and their heirs, and the other in exchange of other lands to them and their heirs in common, this is a good exchange (3); and yet the manner of their estates is not equal, for the estate of one party is joint, and the other in common. And so it is if two men give lands in exchange to A. and his heirs for lands from A. to them two and their heirs, though the one party have a joint estate, and the other a sole estate, yet the exchange is good. The like is, if the one land be of a defeasible title, and the other of an inde feasible title, yet the exchange is good till it be avoided. 4 H. 4. 2. (e) 14 H. 6. 6 E. 2. Exch. 12. 8 E. 2. Cui in vita 28. 10 E. 2. Exch. 13. (d) An exchange with the king is good, and yet the (d) Bracton, lib. 5. king is seised in his politic capacity, and the subject in fol. 389. 17 E. 3. 12 b. his natural capacity (4). But equality of the quantity of the estate is requisite, as it appeareth clearly in the cases put by Littleton. (e) But therein it is to be observed, that it is not necessary that the parties to the exchange be seised of an equal estate at the time of the exchange made: for if tenant in tail, or a husband seised in the right of his wife, exchange lands, and both by the exchange give a feesimple, this is good until it be avoided by the issue in tail, or by the wife after the death of her husband; (f) so as Littleton saith, that in exchanges it behoveth that the estates which both parties have in the land so exchanged be equal, is as 16 E. 3. Exch. 2. 3 E. 3. 19. 12 H. 4. 4 Co. 121.) (ƒ) 44 E. 3. 20. 9 E. 4. 21. 7 H. 4. 17. 30 E. 1. tit. Bre. 88430 E. 1. tit. Exchange much as to say, that the state reciprocally given in exchange 15. ought to be equal. (g) But in a partition the estates allotted (g) F. N. B. 62 m. (3) Here four persons are named as parties to an exchange. But this is not irreconcileable with the opinion mentioned in note 1. of fol. 50 b. that an exchange cannot be between more than two distinct parties; because though four persons are named, yet they constitute only two distinct parties; for in point of interest the two joint-tenants are the conveying parties on the one side, and the two tenants in common are the conveying parties on the other, and consequently there is the same reciprocity as if the transaction was between two persons only. The same observation applies to any number of persons, [See infra, n. (8).]—[Ed.] (4) See 2 Inst 269.-But if the king makes exchange, it seems that it should be by writing recorded; because he can neither give nor take land without matter of record. See Lane, 31. 60. Vin. Abr. Z. c. A. d. B. d.-[Hargr. n. 2. 51 a. (329).] (5) "45 E. 3. 20." Hal. MSS, -[Hargr. n. 3. 51 a.] (Ante, 172 b.) |