it is liable to abuse, and to be carried, even with upright intentions, to an extent prejudicial to the interest of the cestui que trusts, or parties in remainder. Thus, the implied power in trustees to lease, was carried to a great extent, and received a very large and liberal construction, in the Court of Appeals in South Carolina, in the case of Black v. Ligon. The trustees of a charity raised by will, were under an express prohibition against selling or alienating the land; but it was adjudged, that a power to lease was implied. A lease for ninety-nine years, without any annual reservation of rent, and for a very moderate gross sum, payable in eight years, was confirmed upon appeal; inasmuch as great improvements had been made by the purchaser, and the power had been exercised in good faith, and lessees, and sub-lessees, had a strong interest in the confirmation of the lease. This was pushing an implied power to lease very far, and, I apprehend, it went beyond the established precedents. The final decision in the Court of Appeals (and which was contrary to the opinion of the Chancellor in the court below) was directly contrary to the decisions in the House of Lords, in the Queensbury cases from Scotland; where it was *108 finally settled, that leases for ninety-nine years, though at an adequate rent, were a breach of the prohibition against alienation. Even a lease for fiftyseven years was held to fall within the prohibition. It has been made a question, how far equity could relieve against a defective execution of a power of leasing, as against the party entitled in remainder. But if the lessee be in the nature of a purchaser, and has been at expense in improvements, and there is no fraud on the she, Hard. 395. Sugden on Powers, 2d Lond. edit. 545. Roe v. Prideaux, 10 East's Rep. 158. b2 Dow. 90. 285. 5 ibid. 293. 1 Bligh, 339. Bell's Com vol. i. 69.. remainder-man, or there is merely a defect in the execution of the power, equity will interfere, and help the power.a (9.) Covenants for renewal are frequently inserted in leases for terms of years, and they add much to the stability of the lessee's interest, and afford inducement to permanent *improvements. But the *109 landlord is not bound to renew, without a covenant for the purpose; and covenants by the landlord for continual renewals are not favoured, for they tend to create a perpetuity. When they are explicit, the more established weight of authority is in favour of their validity. These beneficial covenants to renew the lease • Campbell v. Leach, Amb. 740. Shannon v. Bradstreet, 1 Sch. & Lef. 52. Sugden on Powers, 364–368. 564, 565. In c. 10, of Mr. Sugden's Treatise of Powers, he considers extensively the law of powers to lease, and to which I must refer the student for a detailed view of that doctrine. In the New-York Revised Statutes, vol. i. 731, art. 3, the subject of powers in general is ably digested, and the doctrine is discharged, in a very considerable degree, from the subtleties which have given it so forbidding a character, and it is placed on clear and rational grounds. The doctrine will be noticed hereafter, in its application to different subjects, and I would now only observe, that the Revised Statutes provide, in relation to the immediate subject before us, that a special and beneficial power may be granted to a tenant for life, of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life; that such a power is not assignable as a separate interest, but is annexed to the estate, and will pass (unless specially excepted) by any conveyance of such estate; and if specially excepted in the conveyance, it is extinguished. So, it may be extinguished by a release of it by the tenant to any person entitled to an expectant estate in the lands. The power is not extinguished or suspended by a mortgage executed by the tenant for life, having a power to make leases, but it is bound by the mortgage in the same manner as the lands are bound; and the mortgagee is entitled, in equity, to the execution of the power, so far as the satisfaction of the debt may require. New-York Revised Statutes, vol. i. 732, 733, sec. 73. 87, 88, 89, 90, 91. ⚫ Lee v. Vernon, Bro. P. C. vol. vii. 432, ed. 1784. Robertson v. St. Johns, 2 Bro. 140. • Furnival v. Crew, 3 Atk. 83. Cooke v. Booth, Cowp. Rep. 819. Lord Eldon, in Willan v. Willan, 16 Ves. 84. Rutgers v. Hunter, 6 Johns. Ch. Rep. 215. Lord Alvanley, as Master of the Rolls, in Baynham v. Guy's Hospital, 3 Ves. 295, spoke strongly against covenants for a perpetual re at the end of the term, run with the land, and bind the grantee of the reversion.* (10.) The tenant for years is not entitled to emblements, provided the lease be for a certain period, and does not depend upon any contingency; for it is his own folly to sow when he knows for a certainty that his lease must expire before harvest time. If, however, the lease for years depends upon an uncertain event, as if a tenant for life, or a husband seised in right of his wife, should lease the estate for five years, and die before the expiration of the term, by reason whereof the lease is determined, the lessee would be entitled to his emblements, on the same principle that the representatives of a tenant for life take them, if there would have been time to have reaped what had been sowed, provided the lessor had lived. The common law made a distinction between the right to emblements, and the expense of ploughing and manuring the ground; and the deter mination by the landlord of an estate at will *110 would give to the lessee his emblements, but not newal. In Attorney General v. Brooke, 18 Ves. 326, Lord Eldon said, that it was impossible to contend in chancery that trustees for a charity could make leases with covenants for perpetual renewal. It would be equivalent to an alienation of the inheritance. A covenant to renew the lease, implies the same term and rent, and perhaps the same conditions. But a covenant to renew upon such terms as might be agreed on is void for uncertainty. Rutgers v. Hunter, supra. Whitlock v. Duffield, 1 Hoffman's Ch. Rep. 110. ■ Moore, 159, pl. 300. In covenants by the tenant to repair, he is to take care that the tenements do not suffer more than the natural operation of time and nature would effect. He is not bound to go further. He is only bound to keep up an old house as an old house. Tindall, Ch. J., Harris v. Jones, 1 Moo. & Rob. 173. Guttridge v. Munyard, ibid. 334. Stanley v. Twogood, 3 Bingham's N. C. Rep. 4. This head of covenants to repair, is treated fully, with a review of all the distinctions, in Gibbons on Dilapidations, p. 63-71. b Litt. sec. 68. By the reasonable custom in Pennsylvania, the tenant for years is entitled to the way-going crop, which is confined to grain sowed in the autumn before the expiration of the lease, and cut in the summer after it is determined. Demi v. Bossler, 1 Penn. Rep. 224. • Co. Litt. 56, a. any compensation for ploughing and manuring the land, provided the lease was determined before the crop was actually in the ground.a The doctrine of emblements is founded on principles so very reasonable, that it could not have escaped the wisdom of the Roman law. They must have existed, as at common law, in tenancies depending on uncertainty; and we find it proposed as a question by Marcellus, whether a tenant for the term of five years could reap the fruits of his labour, arising after the extinguishment of the lease; and he was correctly of opinion that the tenant was not entitled because he must have foreseen the termination of the lease. The Roman law made some compensation to the lessee for the shortness of his five years' lease, for it gave him a claim upon the lessor for reimbursement for his reasonable improvements. The landlord was bound to repair, and the tenant was discharged from the rent, if he was prevented from reaping and enjoying the crops, by an extraordinary and unavoidable calamity, as tempests, fire, or enemies. In these respects the Roman lessee had the advantage of the English tenant; for, if there be no agreement or statute applicable to the case, the English landlord is not bound to repair, or to allow the tenant for repairs made without his authority; and the tenant is bound to pay the rent, and to repair at his own expense, to avoid the charge of permissive waste.d 3. • Bro. Abr. tit. Emblements, pl. 7, tit. Tenant pour Copie de Court roll, pl. Stewart v. Doughty, 9 Johns. Rep. 108. * Pindar v. Ainsley, cited by Buller, J., in 1 Term Rep. 312. Mumford t. Brown, 6 Cowen, 475. The rule in the French law is the same: the landlord is not bound to indemnify the tenant for his meliorations. Lois des Batimens, par Le Page, tom. ii. 205. But though a tenant for years as well as a tenant for life is answerable for waste, as see supra, p. 77. 80. 82; yet á tenant from year to year is only bound to make ordinary tenantable repairs, such as to keep the house wind and water tight, and to repair windows and (II.) Of estates at will. An estate at will is where one man lets land to *111 another, to hold at the will of the lessor. It was determined very anciently, by the common law, and upon principles of justice and policy, that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner, and contrary to equity or good faith. The lessor could not determine the estate after the tenant had sowed, and before he had reaped, so as to prevent the necessary egress and regress, to take the emblements. The possession of the land, on which the crop is growing, continues in the tenant, until the time of taking it arrives. Nor could the tenant, before the period of payment of the rent arrived, determine the estate, so as to cut off the landlord from his rent. The tenant at doors broken by him, and not to make lasting repairs. Anworth v. Johnson, 5 Carr. & Payne, 230. Ferguson's case, 2 Esp. N. P. C. 590. But if the house be in want of substantial repairs, or be otherwise unfit for occupation, the tenant is not bound to repair, and may quit without notice or paying rent Edwards v. Etherington, 7 Term Rep. 117. S. C. Ryan & Mood, 268. Collins v. Barrow, 1 Moo. & Rob. 112. Cowie v. Goodwin, 9 Car. & P. 378. But see contra, sup. vol. iii. 464. Litt. sec. 68. A tenancy at will is determined instanter by a demand of possession, though perhaps the tenant might afterwards enter, solely for the purpose of removing his goods without being a trespasser. Doe v. M'Kay, 10 Barnw. & Cress. 721. b If the tenant at will voluntarily commits waste, and injuriously affects the permanent value of the property, the owner of the land may bring trespass quare clausum fregit. This point was examined, with thorough learning and great ability, by Ch. J. Parker, in Starr v. Jackson, 11 Mass. Rep. 519. Such a tenant is liable for wilful, but not for permissive waste. Gibson v. Wells, 1 N. K. 290. The estate of a tenant at will is too infirm to hold him bound to make repairs, or to be responsible for permissive waste. Gibbons on the Law of Dilapidations, p. 47. 3 Hen. VIII., Keilw. 162, pl. ⚫ 21 Hen. VI., 37. 35 Hen. VI., 24, pl. 30. 4. 13 Hen. VIII., 16, pl. 1. Litt. sec. 68. vol. x. tit. Estate, 406, b. c. pl. 5. d Boraston v. Green, 16 East's e Kighly v. Bulkly, 1 Sid. 348. Leighton v. Theed, 2 Salk. 413. |