Leases of the former description are voidable only, and not void: while those of the latter description are actually and originally void,(z) at least as against the issue.

It is also agreed, that leases voidable by the issue in tail, cannot be avoided by his alienee, with the exception, that the books treat the alienee as having the right to avoid a lease, which is to commence in possession, after the completion of the title of the alienee.

The books(a) also seem to say, that a lease to commence on a future day, and which would be voidable by the issue in tail, may be avoided by the alienee of tenant in tail, who is the grantor, when the lease is to commence in possession, after the title of the alliance is complete: but this is a position not easily reconcileable with first principles.

It is also worthy of observation, that if tenant for life lease for an hundred years absolutely, and the estate of the lessee is confirmed by the reversioner, the lessee will have an absolute instead of a determinable interest; (b) his lease will be derived out of the estate for life, while that estate continues, and will be binding on the estate of

(z) Dyer, 279, pl. 7. Griffin v. Stanhope, Cro. J. 455. Machel v. Clarke, 2 Lord Raym. 778.

(a) Bacon's Abr. Leases, D.

(b) Co. Litt. 45. a.

the reversioner, whenever that estate commences in possession. When it is propounded, that derivative terms will cease with the determination of the estate out of which they are derived, this must be understood of their absolute determination, by effluxion of time or a collateral determination, as in the instance of a lease to A. for ninety-nine years, if he shall so long live; or by a condition annexed by the parties to the original estate; for neither the merger, surrender, or forfeiture of the particular estate, will induce the determination of the estate granted by the underlease. It is also worthy of observation, that when the particular estate is defeated by merger, surrender or forfeiture, the privity of estate between the lessor and the lessee in the underlease, is determined; and the remedy for rents and for breaches of covenant, no longer continues.(c) The lessor in the underlease cannot have these remedies, because they were annexed to a reversion which no longer continues; and they cannot be claimed by the person who had the reversion expectant on the estate of the lessor in the underlease, because there is no privity of estate between this reversioner and the original lessee. These observations must be understood as relevant to the com

(c) Webb v. Russell, 3 Term Rep. 393. Moore Rep. 94.

mon law. In particular instances of renewals, the inconvenience has been remedied by the legislature.(d)

Leases are of two sorts:

1st, Leases which depend on the ownership of the lessor ;

2dly, Leases which depend, either in the whole or in part, on a power residing in that person; and leases of the latter description owe their effect, as far as respects those in remainder, &c. to the power under which they are created; and they are created by means of powers in acts of parliament, conveyances to uses, or authorities in wills.

In general, leases derived under powers are good as against the party himself, his heirs or issue, and those in remainder or reversion; but a power may be penned specially, and may make a lease under the power, binding on the party, and his heirs or issue, without affecting those in reversion or remainder. An instance occurs, under the enabling statute of the 32d H. 8th. c. 28. Leases made in pursuance of that statute, by tenant in tail, are good as against the tenant in tail and his issue, and are void as against those in reversion or remainder,(e) supposing them to be different persons from the tenant in tail. And therefore a lease

(d) 4 Geo. 2. c. 28, s. 6.

(e) Co. Litt. 44. a.

granted by tenant in tail, in pursuance of the provisions of the statute of 32d H. 8th, c. 28, will, as against those in reversion or remainder, determine when the estate tail shall determine; and the estate tail, unless enlarged into a fee-simple by a common recovery, will determine on the failure of the issue inheritable to the estate tail.

Leases are again distinguished into leases which pass an interest, and leases which operate by estoppel. Leases of the former description are supplied from the ownership of the lessor. Those of the latter description are made by persons who have no interest at the time, at least no vested estate, but are to operate on their ownership, when they shal lacquire the same.

Thus, if an heir-apparent, or a person having a contingent remainder, or an interest under an executory devise, or who has no title whatever at the time, makes a lease by indenture, or by a fine sur concessit, and afterwards an estate vests in him, this indenture, or fine, will operate by way of estoppel, to entitle the lessee to hold the lands for the term granted to him; and his estoppel, when it becomes efficient, and can operate on the interest, will be fed by the interest; and the lease will be deemed as a lease derived out of an actua ownership.(f) And

(ƒ) Weale and Lower, Pollexf. 54. Co. Litt. 47, 277, a. Bac. Abr. Leases, O.

there are many cases, in which it is prudent to make such a demise, to the intent that the same may bind the title by way of estoppel, though it cannot operate as a lease of a present interest.

It has frequently occurred, that, in cases of this sort, a fine sur conuzance de droit come ceo, &c. or other fine, importing a grant of the fee, and not a fine sur concessit for years, has been levied. This practice is pregnant with mischief, because the operation of a fine, purporting to grant the fee, will be to extinguish the right to any future estate, instead of binding the title to that estate by estoppel.(g)

The late case of Roe ex dem. Bulkley v. Archbishop of York, (h) calls for some observation. According to the established doctrine, every lease for years which cannot operate upon the ownership, may, if made by indenture, or by fine sur concessit for years, operate by way of estoppel; and no lease that can operate by way of passing an interest, will operate by way of estoppel :(i) and whoever has a term for years, or even an estate for life, and accepts a new lease, incompatible with the interest granted by the former lease, abandons the interest un

(g) Buckier's Case, 2 Co. 55. Weale v. Lower, Pollexf. 54. (h) 6 East, 86.

(i) Co. Litt. 47. b.