uses,) to C. for life, remainder to the right heirs of D. and dies, the reversion in fee, during the suspense of the contingency, descends to the heir of the testator; for the law never supposes the fee to be in abeyance, unless where it is necessary to recur to that construction; and, in the present case, there is no such necessity; for this was no parting with the possession (as in the former instance,) by livery of seisin, but a mere declaration of the use; and the statute only executes the seisin in the same proportion in which the use was disposed of, and nothing more. Supposing then, the heir and the devisee for life to join in a common conveyance, in the life-time of D. the two estates being thus united together in succession, the particular estate will merge in the reversion, and the contingent remainder be defeated and destroyed for ever. But, this it cannot be in the former case, where the limitation was "by deed;" for the particular estate does not merge in the possibility of reverter, but only in the estate of re

version.

It is, however, to be observed, that where the particular estate and the reversion come, by one conveyance, to the same person, there can be no merger of an intervening contingent remainder; because it would evidently contravene the intention of the grantor or devisor. But, otherwise it is, where the particular estate comes by one conveyance, and the reversion by another; for there the operation of law has to contend with no such repugnance. Thus where an estate is left to B. for life, remainder to the unborn son of D. in tail, remainder to the right heirs of B., B. takes a fee executed, subject to the possibility of the contingent remainder vesting. But if B. suffers a recovery, before the event on which the contingency is limited has taken place, the junction of the particular

estate and the reversion in a third person, is a merger and extinguishment of the contingent remainder for-ever.

PROPOSITION IX.

Of the Construction of Common-Law Leases.

THE principal distinctions to be observed in the construction of leases which enure by the common law, (and such indeed is the case with all leases which are not strictly pursuant to the statute,) are, first, between void and voidable; secondly, between leases for years and life; and, thirdly, between things in grant and things in livery.

1. Between "void and voidable." If tenant in tail makes a lease for 40 years, rendering rent, and dies, this is not void but voidable, and if the issue accepts the rent it shall bind him. Why? Because the issue takes the same estate out of which the lease was originally derived; for the tenant in tail, who made the lease, was entrusted with the jus possessionis," the right of possession of the inheritance;" and, therefore, the estate of the lessor continuing, the derived part or portion of it which constitutes the lessee's estate, has also continuance until the issue avoids it. And, because it is a maxim of law, that he who may defeat an estate by his entry, may equally make it good by his confirmation; the issue may, therefore, confirm this lease if he will, and, as he may make an express, so he may make an implied coufirmation, as

z See Fearne's Cont. Rcm. page a Stat, 32 H. 8. c. 28. 345. et seq. last edition.

by accepting rent or the like. But otherwise it is with respect to the remainder-man and the reversioner; for these take several and distinct estates from that out of which the lease was originally derived, and, consequently, upon the determination of the estate tail, by the tenant in tail dying without issue, the unexpired iease for years becomes absolutely void, and not merely voidable. The determination of the greater is the determination of the less estate, which was but a minor part or portion of it.

2. Between leases" for years and for life." If tenant for life, as tenant in dower or by the curtesy, makes a lease for years, upon the death of the lessor this is absolutely void, and can neither be made good afterwards by confirmation or otherwise; for the freehold, out of which it was derived is determined, and the determination of the greater is the determination of the less estate. But, if such tenants make leases for life or lives, it is otherwise. Why? Because, in that case, they create greater estates than can be derived out of what they themselves have, and, consequently, as those leases are derived, not out of the estate of the lessor alone, but out of the two estates of the lessor and the reversioner together, it follows, that the reversioner may either defeat them or not, upon the death of the lessor, as he thinks fit.

3. Between things" in grant," and things "in livery." If the bishop, with confirmation of dean and chapter, makes a lease which is not strictly pursuant to the statute, and therefore operates as a common-law lease, of things in livery, whether for life or lives, or for years, this is not void but voidable; and if, afterwards, the successor accepts the rent, he makes it good and unavoidable. Why? Because the bishop, who made the lease, was entrusted with the jus possessionis, "the right of

possession of the inheritance," and therefore the estate, out of which the lease was derived, has continuance still; and then, according to the legal maxim, "that he who may defeat by his entry, may equally make good by his contirmation," if the successor accepts the rent he necessarily confirms the lease; and, by so doing, he has also waved taking advantage of the statutes which were enacted for making void such leases, because those statutes were made wholly for the benefit of the successor, against the predecessor's acts, and not against the successor's own acts. And, possibly, (says the law,) the reserved rent may be more beneficial to the successor than the land itself. But, if a lease be made for life or lives, of things in graut, as of tithes, or other incorporeal heriditaments, the lease is absolutely void upon the death of the lessor, and not merely voidable; and this is the reason which is assigned for it, viz. that there was anciently no remedy, at the common law, by which the rent, in such case, could be recovered by the successor, if afterwards denied: he could not distrain, for there was nothing of which a distress could be taken; and an action of debt would not lie, because, the lease being for life or lives, no action of debt was maintainable till after the lives ended; and, therefore, since the acceptance of the rent at one day, would not, at the common law, have enabled him to sue for it if afterwards denied, it was held to be unreasonable that he should be bound by such acceptance; and herein consists the principal distinction between the common law, and the law as it stands at this day upon the statutes (1). And as it is of the bishop,

(1) Voidable leases may be equally made good, whether by accepting rent, or by distraining for rent due at the death of the predecessor, or by bringing an action of waste against the lessee;

in such cases, so it is of the dean, the archdeacon, the prebendary, and the like; for these are all "seised” jure ecclesiæ (2).

PROPOSITION X.

Of the Distinction between the Operation of a Fine and that of a Recovery, where the Tenant in Tail has the Reversion, and there are no intermediate Remainders.

THE operation of a fine levied by a tenant in tail (1), where he has the reversion in himself, and there are no in

or, in case the lease be for life or lives, by bringing an assize for rent due after the death of the predecessor, or by acceptance of fealty from the lessee.

(2) For the learning relating to leases made by ecclesiastical persons, see Bacon's Abridgment, vol. 3. tit. Leases.

(1) The uses of a fine, in the modern practice, are, first, to extinguish dormant titles, which are barred after five years' nonclaim by the statutes 18 Ed. 1. & 4 H. 7. c. 24. Or, secondly, to bar the issue in tail, under the statutes 4 H. 7. c. 24. & 32 H. 8. c. 36. Or, thirdly, to pass the estates of femmes covertes, in the inheritance or freehold of lands and tenements. In the last instance, the fine is supposed, by Blackstone, to be binding upon the femme coverte, because she is privately examined as to her voluntary consent. (Bl. Comms. 2. 352.) But, if that were indeed the principal reason, any other mode of conveyance, to which the same form of private examination were superadded, would be as binding as a fine. It seems, that the fine is binding in such case, because it is the conclusion of a real action commenced by original writ," without which preliminary, even at this day, a fine would be a nullity. In the ancient practice, the recovery of the estate of the wife, in a real action, was held to be binding,