tendant term outstanding in a trustee. As it depends on the intention of the parties whether the fine shall, or shall not, be deemed to operate, by way of nonclaim, against the trustee of the term, it follows, as a measure of proper caution, that the intention to bar the term should be declared in all those cases in which a fine is levied with a view that it shall have this operation. When there is an agreement for changing the equity of redemption, from the husband to the wife, the intention to accomplish this object should be clear and explicit. The intention should not be left to construction, or to inference. There should be demonstration. A recital disclosing the intention to charge the equity, is proper, and will have the most decided effect. It is also prudent to add an express declaration, in the operative part of the deed. Words inserted currente calamo, are not allowed to produce this change of ownership, the doctrine in Cooth v. Jackson, 6Vesey, 12, 17, 41. seems, however, to have carried the principle to a very inconvenient extent. On Leases. A Lease, at the common law, is that species of assurance, by which a person who has the fee-simple, or a particular estate, either in tail, for life, or years, creates a term for years, or at will, or if he has an estate of freehold, then for a life or lives, out of that estate, reserving a reversion to himself. Hence the difference between an under-lease and an assignment. At one period it was supposed, that the mere reservation of rent, or of a right of entry by a termor, in an instrument importing to be an under-lease, but in point of fact comprising all the estate of the owner, was an underlease in short, that it was a lease as between these parties. But it is now settled, that though the instrument imports to be a lease, yet, if it does, in effect, comprize all the estate which resides in the grantor, it amounts to an assignment, and is not an under-lease; and a right of entry, or reservation of rent, will not change the nature of the estate. (q) And, on the other hand, if it leaves any portion of the estate in the lessor, even a day, or an hour, or a minute, as a reversion, it is an underlease, and therefore an instrument purporting to be an assignment for the residue of a term, reserving the last day or hour, will operate as a lease of this description. (9) Palmer v. Edwards, Doug. 187. In order that an instrument may operate as an underlease, a reversion must be retained by the former owner, and consequently the underlease must be for a period, less, in point of time, than the term or estate of the lessor; or, when the grant is for the residue of the term of the grantor, there must be an exception of the last day, or the last hour, or of some other period of the term. This exception, as well as a grant made for part only of the period, during which the estate of the grantor is to continue, will leave a reversion in the grantor. It is material that the instrument shall reserve the last portion of the estate; for an instrument may, it should seem, operate as an assignment, notwithstanding it reserves a portion of the estate, being the first part of it, as in the case of an assignment to hold from a day to come, or from an event to happen, (r) unless it is to happen after the death of a person by express limitation.(s) It is to be observed also, that this doctrine of underleases applies only when persons, having particular estates, create interests derived out of their particular estates. After the underlease is made by a termor for years, the grantor has, in point of estate, not merely and simply the residue of the time of his original term: he has the same measure of time, duration of (r) Shep. Touch. (s) Jermyn v. Orchard, Show. Par. Cas. 199. interest, and estate, as he had prior to the underlease; subject only to that lease. The sole effect of the underlease, is to confer a right to the possession, or other beneficial enjoyment, during the term granted by the underlease; and the lessor in the underlease retains, by way of seignory or reversion, his original ownership, subject only to the right conferred by the underlease. These observations are material, with a view to the important doctrine of merger and surrenders; for, on the merger or surrender of the interest taken by the underlease, the lessor in the underlease, or his assignees or representatives, will have the same degree of ownership and right of enjoyment, as if no underlease had been made. And this reversion in the lessor, though it may be merely nominal, will be an interposed estate, and will prevent the application of the doctrine of surrender or merger, as between the estate of the underlessee, and the estate of any other person than the owner of this reversion, or interposed estate. The doctrine is also material, with reference to the learning of estates, which may be enlarged by release; and to the remedies by action of covenant, (s) which run with the estate; and to conditions in restraint of assignment, but not extending to underleases; for an underlease will not be a breach of a (s) Webb v. Russell, 3 Term Rep. 393. condition, which is to avoid the lease on assignment ;(s) nor can the lessor in the original lease maintain debt or covenant against an underlessee, though he might have maintained these remedies in case there had been an assignment instead of an underlease.(t) Underleases afford great facility in rendering titles under attendant terms extremely simple, instead of being very complex. Any number of terms may be assigned to one and the same trustee, for the several residues of several terms, except the last hour of each term. On account of the reversion remaining in each assignor, each term will remain a subsisting interest, without the least danger of merger. The only objection to this mode is, that a captious and unwilling purchaser may contend that each of the former trustees retains a portion of the legal estate, and he may require the estate of each trustee to be assigned for his benefit. Whether this objection will prevail in a court of equity, remains to be decided; and of course the practice cannot be adopted with perfect safety, except in those instances which render it impossible, with any convenience or even certainty, to make a distinct assignment of each term to a distinct trustee; or to assign every alternate term, namely, the first, third, and fifth terms, to one trustee, and each of the in (s) Kennersley v. Orpe, Doug. 56, 57, 181. |