Page:The English Reports v1 1900.pdf/562

clause, which the year before they had inserted in the former act, that then lay before them to be altered and enlarged; because they intended to save none so far, as to suffer any lease to be made for more than forty years, the term allowed by the latter act, that being itself a long term. So that whether the statutes were to be considered singly, or together, it would be a rain thing to grant a lease for ninety-nine years, which would be in-[248]-effectual when made. And as to leases for forty years to forty years, till it should be made up ninety-nine years, it was conceived a Court of Equity would never decree so plain an evasion of any law; for that would be the same thing in effect as a single lease for ninety-nine years, and would as effectually defeat the remedy intended by these statutes. And should the respondents be ordered to make such. leases, this would be a declaration that they might be made consistently with law; a declaration of the highest ill consequence, as it would be an intimation to all the churches and colleges in England, to evade the statutes and defeat the remedy designed by them, in the same way. But further, should the respondents be directed to make a lease for forty years, with a covenant to grant another at the expiration of it for the same term; such a covenant would be void by the statute of the 18 Eliz. which enacts, "That all leases to be made of ecclesiastical possessions, whereof any former lease is in being, not to be ended within three years, shall be void; and that all covenants for making such leases shall be also void."

The respondents however, were willing to treat with the Doctors for a single lease of forty years, without any covenant of renewal to be inserted in it; but it was apprehended, that they were no way obliged to grant even such a lease, upon the foot of the covenant in the old lease of 1567. For that being a covenant to make a lease of ninety-nine years, for a fine of £20 and under a reserved rent of £5 8s. with a clause in it for renewal; and it having become impossible by means of these statutes, to make a lease either for so long a term, or with a clause of renewal; it was apprehended, that the respondents were not by law obliged to make any other lease, either for the same or any other fine or rent, since that would not be the lease which their predecessors covenanted to make, and they could not be bound to do what their predecessors did not covenant should be done. For it was conceived to be clear in law, that one intire covenant cannot be varied or divided; so that if it be not good in the whole, it cannot be good in any part. And if an action at law were to be brought on this covenant, the breach to be assigned must be, that the respondents had refused to make a lease for ninety-nine years, with a clause of renewal therein; and not that they had refused to make a lease for forty years, without a clause of renewal, such refusal being no breach of the covenant. It was likewise worthy consideration, that long leases were no otherwise the cause of dilapidations, or the decay of spiritual livings and hospitality, or the impoverishing of successors, which were the things complained of in the statutes, than as they tied them down to small rents, and cut them off from a power of taking reasonable fines at proper distances of time, in proportion to the true value of the estates demised. To prevent which, the Legislature enacted, that for the future no lease should be made for any longer terms than in the several acts are specified; whereby the inconveniences arising from long leases then in being, or any covenants contained in them, might not continue any longer than till such leases were [249] expired. But if the respondents should now be decreed to grant a forty years lease, for the fine and rent covenanted by the old lease, they would then be subjected forty years longer, to the same inconveniences from which the Legislature intended to relieve them, upon the expiration of such leases. And should the Doctors, upon the expiration of that lease, apply to the Court of Chancery for another upon the same terms, the decree might be offered as a precedent for granting it, and so on for ever, at the expiration of each respective lease. By which means, Courts of Equity would be made subservient to the evasion of the above-mentioned statutes, and to the perpetuating upon the respondents and their successors, the inconveniencies from which the Legislature intended they should at this period of time he delivered. And though it must be admitted, that this lease and covenant were, at the time of their being made, good in law, churches and colleges having the fee-simple in them by the common law, and not being restrained before these disabling statutes, from disposing of, and even alienating their possessions as they thought proper; yet such