case Symonds against CUDMORE Hilary term will mary roll refer to Pemberton v  barn Ch a be tenant in tail with reversion to himself in fee make a lease for  ninetynine year if two life shall so long live to commence after the  determination of a lease for year then in be a die if b his old son and heir  be the issue in tail levy a fine and then the first lease determine the second  lease can be avoid either by he or by the conusee of the fine for the lease be  all interest derive out of the estate tail and also out of the reversion be  only voidable by b as issue in tail and he instead of avoid it have levy a  fine and thereby extinguish the estate tail his power as issue in tail be go  and the conusee can avoid it for he be a mere stranger who never have any  privity in the estate in tail on which alone the power to avoid the lease  depend SC Mod SC salk SC skin SC salk SC Carth SC Mod SC holt SC Freem  ejectment upon the demise of Nicholas martin gentleman on non worthy of blame  plead a special verdict find that sir Nicholas martin be seize of the premise  in fee and that he at exon by deed indent ult August car in consideration of a  marriage then to he have between William martin his son and heir apparent and  Elizabeth c and a portion with her covenant with I l and S l that before the  end of Michaelmas term follow he will levy a fine or by other conveyance  assure the premise to the say covenantees and their heir or such as they shall  dominate to be join to the use of sir Nich martin for life remainder to the  say c it do not appear that any judgement be give in this case but Skinner  report that the court seem ripe to give judgement that the six month shall be  account lunar month and not accord to the calendar because though the clause  in the will and mary c concern ecclesiastical person yet there be another  clause relate to fellow of college who be not ecclesiastical person and if it  be construe calendar month in the one case and lunar in the other the same  word in the same Act of parliament will be understand in two different sense  and holt chief justice incline very strong to this opinion notwithstanding the  case of Copley v Collins hob in which it be resolve that the six month mention  in the Edward c from proof of the surmise in prohibition shall be accord to  the calendar say vide Barksdale v Magal Mod where it be say that the  computation shall be accord to twentyeight day to the month see also Tullett v  Lindfield burr where it be determine that a month time to plead shall be a  lunar month shower KB er p William martin in tail male remainder to sir  Nicholas in tail male remainder to the right heir of sir Nicholas proviso that  it shall be lawful to sir Nicholas during his life and after his death to  William martin and the heir male of his body at their will and pleasure to  make any lease or lease of any part then in demise or usual before that time  within twenty year accustom to be let to any person or person whatsoever as  well in reversion as possession for twentyone year or three life or for any  term or state whatsoever not exceed three life or year determinable on three  life ita quod the ancient and accustom rend be reserve or more and ita quod no  one tenement or thing be at any time estate or charge with any large shower KB  or long estate or term than for twentyone year or three life or any number of  year determinable on the death of three person at the most that afterward on  the first of September car sir Nicholas martin make a lease for year and a  release to the use and under the limitation and power in the first indenture  mention that by virtue of these indenture sir Nicholas become seize for life  remainder to the say William martin in tale male c that the say sir Nicholas  have issue the say William martin his only son and heir that the say marriage  be solemnized that the say William martin and Elizabeth his wife have issue  Nicholas martin the lessor of the plaintiff that on the march car sir Nicholas  by indenture demise to clement Westcombe the house in question habendum from  the aforesaid that day of march for ninetynine year if Elizabeth Richard and  Nicholas Westcombe shall so long live render S rend per annum by virtue  whereof clement enter and continue possess until the that of may on which day  Richard Westcombe die by who death the lease make to clement be legal  determine and not before that some time after the demise to clement sir  Nicholas die seize of the reversion and William martin become seize of the  reversion and that he be so seize on the October recite the lease to dr  Westcombe for year determinable on the life of Elizabeth Richard and Nicholas  Westcombe under the say rend of S do for twentyone year release of the say  annual rend and lease and to farm let si law in hoc grammatical case such  demand the say house to the say Elizabeth for ninetynine year after the legal  determination of the before recite estate then in the same be if George and  William shall so long live render the rend of ten shilling that Elizabeth  Richard and Nicholas be then and long afterward in life that William martin  April die seize of the reversion aforesaid and after his death the say  Nicholas the lessor of the plaintiff become seize of the reversion that during  the lease to clement Westcombe and before the determination of it videlicet in  the car Nicholas martin levy a fine sur conusance de law come Ceo c to sir  John Carew and other with proclamation to the use of the say Nicholas martin  in fee that the lease of sir Nicholas to clement Westcombe do on the may  determine by the death of Richard Westcombe that the lease make by William  martin to Elizabeth Westcombe be debt is owed law form assign to Cudmore that  he by virtue thereof enter that Nicholas martin enter on he and make the  demise in shower KB the declaration mention to the plaintiff who enter and be  possess until the defendant enter and eject king c et si pro quer pro quer et  si pro def pro def shower for the defendant the case in short be thus a be  tenant for life remainder in tail to b the old son and heir of a remainder in  tail to a remainder in fee to the right heir of a with power for the tenant  for life and the remainder man and his issue in tail to make lease a make a  lease pursuant to the power and die while that lease be in be b the remainder  man in tail make a lease for year render ten shilling rend to commence after  the determination of the first lease b die leave issue Nicholas martin the  lessor of the plaintiff heir to the entail Nicholas martin before the  commencement of the second lease or the determination of the first levy a fine  sur conusance de law come Ceo c with proclamation to the use of himself in  feesimple the first lease determine the second lessee enter the lessor of the  plaintiff enter upon he c the first question in this case be whether this  lease be agreeable to the power and if so then there will be a end of the case  second admit that against I first whether this lease be not void in its first  creation second whether it be not void by the death of the then tenant in  shower KB er p tail who make it or voidable only and three if now voidable at  all after the fine levy by the issue in tail as to the first question I will  just put the case and submit it the power be to make any lease or lease of any  part of the premise usual demise in possession or reversion for twentyone year  or three life or any number of year determinable on three life so that the  thing to be lease be not at any time state or lease for any long or large term  or estate than three life twentyone year or other number of year determinable  on three life at the most render the usual rend or more now take this power  accord to the word the lease be not repugnant for it be to be in possession or  reversion at the will and pleasure of the tenant or issue in tail so that no  one estate or lease be for above three life now here be no one estate for more  here be one in possession for three life and one in reversion for two the  meaning may be that he may make a lease in possession for three life and the  like in reversion for three but neither for more and if it be construe that  all together shall amount to no more in reversion as well as possession then  those word in reversion will shower KB be in part useless but this seem hard  to justify so I wave it and argue the other the second question if this second  lease be good and valid though not pursuant to the power and to make it appear  so I insist on three thing first that when tenant in tail make a lease for  year render rend and die such lease be not determine by the death of the  lessor or the descent of the estate tail on the issue but remain in force till  avoid by the entry of the issue second that if before such avoidance a fine be  levy and the estate tail either bar or extinguish such lease become thereby  indefeasable and that three there be no difference as to this respect between  our lease and that of any other lease that a lease to commence at a future day  stand in the same plight quoad the issue especial as our case be be make by  tenant in tail remainder in fee to himself first when tenant in tail make a  lease for year render rend and die the lease do not thereby become void but  the issue may avoid it or not at his pleasure this I know will be agree to I  but I must pray leave to enforce and a little to illustrate the reason of it  because the same reason will be applicable to the lease in year as I shall  evince present the difference be between a charge and a interest with  recompense it be true if tenant in tail grant a rend charge or the like when  he die it be determine because as he have not since the statute a power of  alienation so neither can he clog or encumber the land or the estate to the  damage of the issue for that will entire evade the force of the statute de  gift c now the very reason why such encumbrance become void by his death  videlicet benefit of the issue be the very reason why a lease for year render  rend be not so void but only voidable the one be clear at first sight a  apparent mischief to the issue in the latter case the recompense by rend make  it doubtful whether the lease will prove so or not because perhaps the rend  may be of more value than the land and if so then the issue for who sake the  statute de gift be make may be advantage by such lease and consequent it be  unreasonable that the law which be design for his benefit shall be construe to  turn to his mischief and this be the true reason of his privilege to elect  because it stand indifferent whether beneficial or mischievous and perhaps the  rend though of lesser value may be of more advantage to the issue than the  land as his father think before he because of the distance of the land from  his habitation or the like whereas in the other case of charge there be no  quid pro quo nothing in lieu or recompense for the loss this difference upon  this reason be agree in the case of smith v Stapleton shower KB a which I  shall put at large anon and in Plowden be cite all the case to this purpose  which I will not repeat as Octavian Lombard case and Cawxtons and other nay if  a rentcharge grant be for the benefit of the issue it be not void by the death  of the grantor as if tenant in tail have but a defeasible title a rentcharge  grant for the release of all right shall bind the issue for ever because  apparent for his advantage that grant preserve to he the estate so that the  difference on the whole be this where the act of the ancestor be apparent  mischievous to the issue it become absolute void by his a Plowden shower KB er  p death where it be apparent beneficial it be absolute good and bind for ever  where it be indifferent and doubtful whether profit or loss there neither  valid nor void but only voidable at election I roll Abr   light dyer and all  the other case admit this second that lease make by tenant in tail be only  voidable by the issue in tail while as such that he may avoid such lease must  be agree and the reason why be may avoid it be the statute de gift it be a  privilege give to he by that statute for before his ancestor may have alien  after issue and the alienee may have enjoy it for ever much more may he make a  lease render a rend so as to bind he then the statute be design for the  benefit of the issue and the issue only this be a power belong to and follow  of the estate tail and when that estate be go the power or privilege incident  to it must of consequence fail I pray your lordship consideration of the  nature of a estate tail it be special and particular and differ from all other  estate whatsoever it be not transferable as other estate be estate either in  feesimple for life or for year may by due conveyance in the law be transfer  and the party to who such legal conveyance be make may and shall be say to be  and real be seize or possess of the same estate for quality as the alienor be  but this be not true of a estate tail it be personal inherent in the blood and  issue of the donee and therefore before the statute of fine a discontinuance  of it wrought a new and tortuous fee and now by the statute a lawful one but  he be no long seize of a estate tail in all plead now after this fine he must  allege himself seize in of his ut de fee simple then for this right of  election to avoid or affirm the lease of his ancestor it be only a power  incident to the estate tail and it be no more for it be not a incident to the  remainder or reversion in fee for if a estate tail be grant to one remainder  shower KB or reversion to another in fee and the tenant in tail make a lease  for year and die without issue this lease be void quoad the reversioner or  remainderman as be   light there if tenant in tail remainder to his own right  heir as our case be and I shall observe more anon make a lease for year and  die without issue his heir general can avoid this lease it be only the issue  in tail which can avoid it and as issue in tail and therefore only while such  now he be become a mere stranger to the estate tail there remain no long any  privity in he now the statute be not make for the advantage of stranger but  only to preserve the estate and inheritance in the blood of he to who the gift  be make secundum form gift and so be   light by coke from the mouth or sir  William Herle in Edward and the old book of Edward and Edward which have be  cite that a recovery be give to the blood of the donee and not to other and  the plea of that statute lie only in their mouth and no other this be plain by  Littleton sect the intent of the statute be that nothing shall be do to the  prejudice of the issue and my Lord coke in his comment on that statute   light  say hereby it appear that to restrain tenant in tail from alienation against  the profit of his issue be good for it agree with the will of the donor and  the intent of the statute and a condition annex to a estate tail not to suffer  a common recovery be therefore void because of the suppose recompense all  which prove the issue only concern here the conusor now be not privy any way a  fine be a feoff upon record and no man can or ought to make a title against  his own feoff by the fine be acknowledge a feesimple in the conusor and by the  proclamation and statute his issue be bar to say otherwise and so neither he  nor his issue can say the estate tail be in be or avoid this lease by force of  the estate tail and it must be by force of that or not at all to prove such a  voidable lease confirm by a fine levy by the issue in tail whether the fine be  subsequent to the lease or before see the case of Cudmore v Bittison side it  be Michaelmas term car b r on a trial at bar here and a special verdict wave  on that opinion here though it be offer baron and feme tenant in special tail  remainder to the heir of the husband they have issue two daughter they levy a  fine to a stranger and his heir the husband die the feme make a lease for one  hundred year and die hold to be a good lease and to continue in force so long  as there be issue in tail in be and that it can not be avoid Crocker shower KB  v Kelsey in Jones cro James Bridgeman at large be direct in this it be the  same case and as it be roll Abr it prove the lease not avoidable by the shower  KB er p conusor because not in of the estate tail and therefore say that book  it be good so long as there be issue of the body and this though the fine be  levy by the issue in tail before the lease make by the feme mother and this  judgement affirm on error and no doubt of this point say roll but only of that  on the Henry c of jointure as that case of Crocker v Kelsey be in Jones this  point of avoid the lease by the conusee be admit that it can and then though  agree that to some purpose the estate tail have a continuance in right quoad  stranger yet the lease be not avoidable so long as there be issue though as to  the reversion it will be void as they there incline but that be because there  the lease be make by the feme who have not the reversion in her as here the  lessor have and I shall show more present now I say there can have be no  question on the statute of jointure but this point must be agree that the fine  so alter the estate tail as to make the lease unavoidable because the lease be  good at commonlaw and the statute de gift only aid the issue in tail as it be  in roll Rep mason in his argument agree this that if tenant in tail make a  lease for year and then levy a fine to another this lease become unavoidable  and though that case have be cite on the other side yet nothing in it can  argue for a contrary opinion for suppose the estate tail only bar and not  extinguish yet the estate tail have a continuance only for the benefit of  stranger not to the destruction of their right a stranger may say in some case  that the tail still continue but never the party himself and all the case  there put and all that can be find in the book where particular estate be  drown or extinguish or bar or alter by surrender or other act of the party  though they be say in notion to have a continuance after such act yet it be  only quoad stranger to preserve their right never to destroy they the know  case of tenant for life when he grant a rentcharge and then surrender his  estate be go and absolute merge between he and the reversioner but quoad the  grantee it be still in be and I know of no particular case where a particular  estate can be say to be in be quoad stranger that be go between the party but  it be for the stranger benefit and not the party the stranger shall be admit  to say it continue in be not the party so that if the estate tail be only bar  and not extinguish by the fine yet it make not for they if it be extinguish  shower KB the lessor can pretend to avoid this lease if only bar it shall not  be avoid by he after the fine and the conusee can avoid it so long as there be  issue in be by that case aforecited in Bridgeman it be admit that if the issue  do make a feoff to a stranger before entry the feoff shall never avoid such  lease and there it be take for a general rule that the feoff of tenant in tail  and all that come to the land under the tenant in tail by any assurance make  by he whereby the estate tail be bar or discontinue shall have hold the estate  charge with the lease and charge make by tenant in tail and the same law be  for those that come to the land under the tenant in tail though the estate  tail remain not bar or discontinue except the issue in tail who be help by the  statute de gift and therefore if tenant in tail make a lease for year the feme  shall hold it charge so shall tenant per courtesy of a feme tenant in tail and  tenant for three life warrant by the statute of Henry c shall not avoid such  lease and the reason be because the statute de gift do not aid they as it do  the issue the case in Elizabeth Dalison in fine new bendl be strong feme  tenant in tail make a lease for twentyone year and after take husband and they  have issue she die her husband be tenant per courtesy surrender that estate to  the issue in tail hold that tenant by courtesy can not avoid that lease nor  can the issue during life of tenant per courtesy because so long he shall be  say to be in of that estate it be true more seem otherways but Leon be accord  to Dalisons report and the same be in Owen Poutrells case objection sir Thomas  Wiatts case dyer tenant in tail reversion in the king he make a lease for year  tenant in tail be attaint the king be in of the reversion shall avoid the  lease but I answer the reason there be because the king can not have two  feesimples one as donor and so he have the reversion the other by the  attainder as determinable on death without issue but hold there that if the  king have have the estate tail as forfeit by Act of parliament only he shall  not avoid lease make by the tenant in tail there the king become seize of the  reversion by act in law videlicet the attainder here be a act do by the issue  himself shower KB er p this be rather like to the case of the Lord Aberganey    two jointtenants in fee and one grant a rentcharge in fee then release to his  companion he shall never avoid that grant because he come to it by his own act  videlicet acceptance of the release and not per law accrescend and so by  acceptance of the release he have deprive himself of the benefit and shower KB  mean of avoid the charge of his companion which he may have have by the  survivorship objection sir George brown case   that in case of a lease make by  feme tenant in tail for three life contrary to the Henry c of jointure the  alienee by fine from the issue may enter and avoid such lease answer that be  true but consider the reason of it and it make for I that judgement be find  mere on the word of the Act to who the incontestable title or inheritance  appertain c but it be there agree that otherwise and by the common rule he can  not for a right or title of entry can not be transfer and the conusor can not  claim against his own fine objection   light the feoff shall have the same  election to avoid or affirm as the issue answer that can be law nor do the  authority there cite justify it Plowd for it be only say by the counsel  arguendo and put with a and peradventure for the disallowance which coke omit  beside the feoff be in of a tortuous fee and so be the text of master  Littleton sect and then by consequence he can no more avoid the lease than a  seize but by that very case it suppose a entry by the issue in tail which  plain prove that a mere dissent do not make it void however a actual entry do  undoubted avoid it and that be true and further not and roll in his Abr where  he have this of coke add quaere Ceo objection the case of power v Thomson side  keb answer there never be any judgement in that case and as it be mention in  keb it do appear so then the case of smith v Stapleton Plowd be in truth a  full and direct authority that such lease make by tenant in tail may after the  death of tenant in tail become unavoidable by a fine with proclamation  otherwise there can have be no argument nor judgement that the lease be  unavoidable for if after the proclamation and a bar of the estate tail the  same election remain as before those other point there can never have be in  doubt as whether the lease shall bind and be unavoidable which be raise on the  grant and remainder in the life of tenant in tail by the proclamation come  afterward if the estate tail be extinguish then I take it to be clear that the  lease be unavoidable if only bar its continuance be and can be only for the  benefit not the mischief of stranger but by and by I shall I hope prove it  extinguish as this case be shower KB three then whether there be any  difference between this and the common case of a lease for year by tenant in  tail if our lease now in question be not in the same plight and condition as  any other and with submission it be the same in all respect with a term  commence for it be neither void in its creation nor void by the death of  tenant in tail nor voidable by the conusee of the fine any more or otherwise  than another term it be not void in its creation for whatsoever may by any  possibility take effect and have its full force can never be say to be void  now this future lease may have commence in the lifetime of he that make it by  the determination of the former lease for no man can say it will have be  invalid with respect to the tenant in tail himself and consequent not void in  its creation it be nothing like a lease make to begin after death for there  perhaps it may be say to be so because only a charge or encumbrance on his  issue and none upon himself the law restrain he from prejudice his issue which  that apparent do for he himself agree it inconvenient because it do not charge  himself it be like the case of a warranty in   light where the heir shall  never be bind by a express warranty but where the ancestor be bind by the same  the same if a man bind his heir to pay a sum of money this be void and so  agree in the case of oat v Frith hob that no man shall charge his heir but as  part of himself and so begin with himself and for that reason a contract  concern his land which shall otherwise go to his issue shall not bind because  not bind himself but even that case of a lease commence post death be but  Manwoods opinion in dyer and Catlin justice deny it to be law but however take  it for grant it can affect our case for the reason of manwood be and only can  be because it can not take effect in be from the possession in the life of  tenant in tail there the issue shower KB er p claim paramount the lease and  become seize of the estate tail per death second form gift which be before the  commencement of the lease for that be post death and can by no possibility  attach in possession till then but a future lease though it be not of the same  validity and force to all intent and purpose as one in possession yet it be as  to those respect we be now consider it be esteem in law as a interest and as a  interest assignable it be not as a mere choose in action for that can be  assign it be not as a mere possibility for that can be bar as be in the case  of pell v brown of a executory devise this be forfeitable as other estate and  may be surrender or extinguish by act do on the land or which touch the realty  though in some case in a different manner shower KB than some other particular  estate it be a interest here issue out of the estate tail in possession for it  may have attach in possession in his lifetime beside here it be under the same  respect quoad the issue as a term commence it be with a recompense by rend and  consequent only voidable not void for the same reason as any other lease the  quantum be not considerable in the eye of the law and therefore its petiteness  be no objection for the issue if he have think the land better in value or  more eligible in any other respect may have avoid it by entry there be no rule  or measure in the book how much or how little shall or shall not do in any  case if a rend it be enough because of the election as this case for the point  of recompense so for the point of futurity be comparable to other where the  law give election as lease make by feme covert infant or other person under  like disability their lease if without render be void if with render be only  voidable by disagreement when the disability be remove so be the case of  Smalman v Agborow hut and roll Rep now those may be compare to this of tenant  in tail which be under protection of the statute as they be under the care of  the commonlaw suppose a feme covert or a infant make a lease to commence at  Michaelmas next with a render of rend and before that day the disability be  remove sure acceptance of the rend after such time will make they good yet if  void it can not the same here and as I say before the protection of the  statute de gift be not for the sake of tenant in tail but his issue for upon  the most strict construction of it he may alien during his life and therefore  this lease can never be void ab beginning because it be consistent with the  estate tail for notwithstanding those two successive lease he continue still  seize of the estate tail and that secundum form gift both freehold and  inheritance remain in he still this can be deny I so be   light therefore not  void beside there be not one reason why a lease for year commence with render  may be affirm or avoid by issue in tail but what will reach this case the two  reason assign be that a interest passes and a rend be reserve here be both  this rend shall by opinion of law follow the reversion and that prove this  future lease sound not mere in contract but in estate too in Brierton v Evans  roll Abr the case be a man make a lease for life and afterward make a lease  for year to commence after the death of lessee for life render rend and then  levy a fine of the reversion to remain to shower KB he and his wife then die  the lessee for life die the feme in reversion shall have debt against this  lessee for year for rend incur after the death of the tenant for life though  the lessee for life or year never attorned and the lessee for year can not  attorn because he have only a future term at the time of the fine levy and yet  adjudge as before which show that the rend shall follow the reversion the case  of cro pledger v lake be very strong to prove the regard value and  consideration which the law have of and for a future term that the law regard  it as a term and interest though future tenant for life remainder in tail he  in remainder make a lease for year to commence after the death of tenant for  life tenant for life afterward suffer a common recovery with voucher of he in  remainder in tail and die the question be if this lease be destroy and go and  all the justice hold it in the negative and that such lessee may well falsify  such recovery both at commonlaw and by the statute of Henry c though a release  can be make to such lessee of a future term pur increaser deal estate yet he  be capable of a release of the rend by reason of the privity between they and  he may assign it or if he do not it shall go to his executor   light such a  interest be capable of a confirmation and so be it express in shower KB er p  more case where a bishop make such a future lease to be Confirmable by the  dean and chapter and the case of Bayley v more keb be so imperfect report that  its authority can contradict this it be true it be otherwise of a lease make  by a seize to commence at a future day   light though the yearbooks there cite  do not warrant it but yet suppose it so that be upon another reason because  all the estate of the seize be tortuous nothing but possession capacitate he  himself to take a release and consequent no interest derive from he can do  otherwise without possession too a future lease to commence at a day to come  make by tenant in tail if pursuant in other respect to Henry be good even  within that law and so be dyer by the better opinion there and in the margin  there be cite a case of Thompson v Trafford the report be in Poph and Leon  ancient lease warrant by the statute be good though to commence at a future  day and if so there be the same reason why such lease not warrant by the  statute shall be only voidable as the other will have be if the statute have  not be make but what be more than all this to prove the consideration of a  future lease to be the same as one in possession be the case shower KB of  jointtenants in coke upon Littleton b if two jointtenants be of a term and one  of they grant to I S that if he pay to he ten pound before Michaelmas that  then he shall have his term the grantor die before the day I S pay the sum to  his executor at the time require yet he shall not have the term for it be but  in nature of a communication but if he have make a lease for year to begin at  Michaelmas it shall have bind the survivor but otherwise of a rentcharge  common estovers or the like they shall not bind the survivor for the sake of  two maxim law accrescend prefertur load and another transference of ownership  rei prefertur law accrescend so that by coke it be plain that such interest  termini amount to a alienation and be not a mere encumbrance of the same mind  be Littleton himself afterward sect if two jointtenants be seize of certain  land in feesimple and the one let we that to he belong for a term of forty  year and die before the term commence the lessee may enter and occupy the  moiety to he lease during the term c albeit the lessee never have possession  in the life of the lessor by force of the lease and he go on the diversity be  between the grant of a rentcharge and year in the grant of the rentcharge by  one jointtenant c the tenement continue always as they be before without this  that any one have right to have any parcel of the tenement but themselves and  the tenement do continue in the same plight as they be before the charge but  where a lease be make by one jointtenant to another for year to commence at a  future day the lessee immediate have right to all which his lessor have for  the term lease this needs no paraphrase these be his word and prove clear that  our lease pass a interest accord be the case of Whitlock v Horton cro James  ejectment special verdict two jointtenants for life one of they grant that I S  shall hold and enjoy the whole after the death of her companion hold ill  because she can not contract for the land of her partner because she have no  right therein but there resolve that as to her own moiety it be a good lease  to charge and bind her companion if she have survive her that if two  jointtenants for life and one make a lease to commence after his death it be  good to bind the companion and the same with a present lease for the future  day of commencement make no difference say the book the case of wood v  Reynolds cro Elizabeth be full in this point ejectment special verdict sir  John Russel seize in fee by indenture covenant in consideration of marriage to  be have to stand seize to the use of himself and his heir till marriage and  shower KB after to the use of himself and dame Russel for their life and the  heir of his body on her with remainder over afterward he let we the land for a  term of thirtyone year to commence after the determination of a former term  afterward the marriage take effect the first term expire sir John Russel die  the lady enter and argue that her entry be lawful and that this future lease  can not bind or bar the contingent use all hold it can not bar the contingent  use because the freehold and inheritance continue as it be unchanged so here  but all hold that this lease though thus future shall bind for a beneficiary  and use shall not at b page section shower KB er p commonlaw avoid a lease  make by the feoff upon a good consideration this lease though thus future be  make out of the estate in fee from whence the use arised shall bind it and  Popham say he have confer with the justice at sergeant inn and that they be of  the same mind a the case of leigh v Burton b in the court of ware in Hilary  term Elizabeth cite in cro Elizabeth be strong that such lease shall prevent  the rise of a contingent use but yet they all prove no real difference between  a lease to commence in going to be and another that the one passes a interest  as real as the other the case they insist on so much out of coke which I  mention before   light prove that there be no difference for there he put it  thus if tenant in tail make a lease to commence ten year hence render rend  tenant in tail die the issue enter and make a feoff and then the ten year  expire now may the feoff have election as he say to affirm or avoid this prove  what I now contend for that this lease passes a interest it may be object the  case of sir Marmaduke Wynel hob where tenant in tail of a advowson and his son  and heir join in a grant of the next avoidance tenant in tail die and hold to  be a void grant against the son and heir I answer that no way affect or govern  our case at all because the issue in tail can not be bind by his own  concurrence because he have nothing in it at the time of the grant neither in  right nor possession nor can it bind he as a grant of his father because no  recompense by rend and for want of that it be void as the father grant and  such be the resolution in the case of bowl v Walter roll Rep where tenant in  tail of a manor to which a advowson be appendant grant the next avoidance and  die and the issue enter into the manor the grant be void because it be a thing  which lie in grant whereof no formedon lie and there be no rend reserve upon  it these be the reason of the book but further coke there put our case shower  KB and give it for we tenant in tail grant a lease to commence at Michaelmas  render rend and die before Michaelmas the issue enter into the residue of the  land descend yet he may make this lease good by acceptance of rend after  Michaelmas because his election be not come before this be the same roll Abr  and be a direct opinion that such lease be not void quoad the issue but only  voidable for otherwise no acceptance can make it good the case of errington v  errington Bulst be a full proof of this for there be no question make in the  whole case about the futurity of the lease but only whether the issue in the  lifetime of the mother can charge the estatetail with such a lease and coke  and all agree the reversion charge this bring I to my last point in which the  case be thus tenant in tail remainder to his own right heir make a lease  render rend to commence at a future day and die before that day happen the  issue levy a fine before entry if he can avoid this lease suppose tenant in  tail have die without issue male and so the estatetail have be spend can his  brother or heir general have avoid this lease sure no then I say errington  case be a direct authority for I baron and feme tenant in special tail  remainder to the right heir of the husband they have issue the husband die the  issue in the lifetime of the mother make a lease to commence after the death  of the mother render rend then die the reversion descend to jane errington who  before entry or acceptance levy a fine the question be if the lease be good  and by William Fleming and croak justice the conusee can not avoid the lease  and the reason be because the estate tail be go and the conusee not be privy  to that estate can not avoid the lease they who argue for the defendant will  have it that the lease do not charge the estate tail but only the reversion  the issue at the time of make it not be seize of the estate tail but only have  a possibility and then the estate tail be only bar the conusee shall hold it  clear till death without issue but the then court hold the estate tail go by  the fine and the conusee in of a fee out of the reversion and so the lease  good then come coke and he hold that the issue have only a possibility and so  the lease be void quoad the estate tail and consequent so long as issue be the  conusee shall hold it clear for that the lease have its need a but Fenner  justice be of a contrary opinion and therefore the case be adjourn b more  shower KB er p cion by way of interest only out of the reversion now both  these make our case plain they both agree that it pass a interest of the  reversion they both admit that if he have be seize of the estate tail at the  time and shower KB so the estate tail have be charge and then a fine levy and  thereby the privity destroy no body can avoid the lease the counsel and judge  that argue for the defendant do not any of they contend that the conusee have  election to avoid but only that the lessor not be seize of the estate tail  when he make the same the estate be not charge and so that estate if it  continue the lease can not take effect during its continuance and that it have  continuance because it be only bar by the fine and croak justice agree that if  make by one in possession of the estate tail and then a fine it be a bar and  the lease good now here the lessor be actual seize in fee tail when he make  this lease and consequent it must charge that possession in point of interest  then by the same case it be agree that it issue also out of the reversion in  point of interest too if the first lease have determine before the estate tail  have be destroy by the fine this lease have certain take effect for that  estate tail be charge by the case I have cite then that be bar the privity to  that estate tail be so far go by the fine that none can say it have  continuance to the prejudice of a stranger and consequent it must be a good  lease so long as the issue be in be by the opinion of croak justice and they  if the estate tail be extinguish it charge the reversion and be become  unavoidable now here the reversion be in he that levy the fine the estate tail  be extinguish and the difference put by Mr justice Jones in his argument in  the case of Godfrey v wade Jones and agree by the counsel at the bar reach  this that fine levy by the issue in tail in the life of the ancestor have no  estate if it be to one that have nothing in the land work only by way of  conclusion against he and his lineal issue and those who claim in the post but  not against those who have a elder title as capel case c and archer case d be  but if the party who levy the fine have the reversion or if he levy the fine  to he that have the reversion there the fine operate by way of discharge and  extinguishment of the estate tail and the conusor shall be in by force of the  reversion discharge of the estate tail and this be the three resolution in sir  George brown case e that there be such a reversion the estate tail be extinct  and like to it be the case of Hussey cite in Altonwoods case   f where be  tenant in tail reversion in the king and the tenant in tail by deed enrol  grant to the king and then the Henry c be make by which the tail be bar and  then the king grant it in fee and hold a good grant for he have but one fee  and that be by force of the reversion if shower KB tenant in tail do bargain  and sell and levy a fine to the reversioner in this case the estate tail be  extinct and the bargainee shall be in of the reversion discharge of the estate  tail acquire ration it must be so here and consequent our lease be good and  indefeasible and judgement ought to be for the defendant levins sergeant on  the other side argue for the plaintiff that this be a voidable lease and that  the conusee of the issue in tail may avoid it accord to   light that the  reversion be not happen that the estate tail remain in he though the issue be  bar to say so by the statute that the estate tail be only bar but not  extinguish and cite capel case g Brudens case h and Beamonts case I and many  other case wherein it be hold that the estate tail be not extinguish holt  chief justice it will be hard to make it so far to have a continuance as to  prejudice the interest of a stranger especial the reversion be in he curian  advisare vult king c   d   Eq Abr cro Elizabeth and e   cro Elizabeth more f  jenk and g   Poph Bulst h   I   king in Hilary term and William and mary the  judge deliver their opinion seriatim see SC skin to and judgement be give for  the defendant shower KB er p