Bulstrode SMALEMAN plaintiff against EIGBURROW defendant in a action of  trespass upon a demurrer the case appear to be this S the defendant and a feme  sole be jointtenants for life of certain land the wife take a husband the  husband and wife by their indenture de join in a lease of the moiety of the  land of the wife for year to the plaintiff if the wife and the defendant her  companion shall so long live render a yearly rend for the same the wife die  live the husband the defendant be the survivor enter upon the plaintiff be the  lessee to avoid the lease after the coverture end and for this his entry a  action of trespass be bring whether he may avoid this lease or not be the only  question this case be several time argue at the bar termin Trin James by  Bridgman and Coventry for the plaintiff and darcy and George crook for the  defendant the question move be two S l whether this lease thus make in point  of estate shall determine or continue by the death of the wife if this lease  be but voidable whether the survive jointtenant shall avoid this lease or not  for the plaintiff it be urge that if baron feme de join in a lease for year by  indenture of the land of the wife render rend that this lease be not void but  voidable and that privy in blood shall take advantage of nonage or coverture  but not privy in law nor privy in estate as appear coke pars fol in  Whittinghams case a lord by escheat shall not avoid a voidable lease because  he be but privy in law it be further urge for the plaintiff that the survivor  here shall not avoid this lease be not void but voidable and that a difference  will be where a lease be determine in right and where not by the death of the  husband or wife another Bulstrode er p difference likewise will be as it be  urge where the husband alone make the lease of the wife land and where the  husband and wife de join in the lease in both these case the lease be not void  but voidable here in this case the lease be only voidable good in respect of  the possibility to survive and of the right of the wife by the survivorship if  the husband alone de lease the land of the wife and die this lease be not  determine in facto but be determine in right Plowdens commentary fol in  Browning Beestons case if the husband alone de lease the land of the wife and  die the lease remain good and not determine before the wife by her entry de  avoid this so be h fol h dyer fol for as to the possession the lease have  continuance and remain in full force until the wife have avoid this by her  entry but as to the right this be present determine by the death of the  husband where make by he alone but when they both join in the lease of the  wife land there after the death of the wife this be a good lease in right for  she may make this lease good by her acceptance of the rend after the death of  her husband and so be e fol nariae dyer fol in this case the lease as it be  urge be but a voidable lease to be avoid by the wife and when the wife be here  dead before she have make this her election to have this to be a good lease or  not the survive Bulstrode tenant shall not now avoid this lease for that no  such election be give unto he the same be at the first but voidable by the  wife and now by the death of the wife the same be become to be unavoidable it  be also further urge that in this case the survivor be not privy to this lease  and therefore he shall not avoid it it be urge for the defendant that the  survivor here may well avoid this lease for that a lease make by one  jointtenant to charge his companion ought to be a absolute lease and not  voidable as the lease in this case be also when baron and feme make a lease  for year of the wife land by deed render rend prima fancy this lease be good  because it may be make good by the wife by possibility if she survive her  husband and consent unto it by her acceptance of the rend then by this  agreement this be the lease of the wife but if she do not survive her husband  but die before and so no agreement by her unto this lease then the same be not  her lease in any respect but it shall then be in law as a lease make by her  husband alone and so no such lease make by the wife conditional if she survive  and agree otherwise not but as a lease make by the husband alone and so no  such lease make by the wife conditional if she survive and agree otherwise not  but as a lease make by the husband alone it be the lease of the wife with this  possibility to be make good and so to be her lease by her acceptance of the  rend if she survive otherwise not and if the lease be make by the husband  alone the survivor may well avoid this because it be good only in regard of  the possession and so as it be urge this lease here be not voidable but  absolute void and so well avoidable by the survivor coke pars fol b harvey  case put in cromwell case the husband make a lease for year of the wife land  afterward baron and feme levy a fine of the land to another the conusee shall  avoid this lease after the death of the husband e fol baron and feme make a  lease for year of the wife land render rend the husband alone bring debt for  the rend adjudge maintainable because this be the lease of the husband alone  before his death but if the wife survive and agree to it it shall be then the  lease of the wife it be further urge that if this possibility to make this  lease good be once reduce in sharply this shall make the lease good otherwise  not but here the wife die in the life time of the husband so that this  possibility which the wife have to have make the lease good and unavoidable by  her acceptance of the rend be now by her death determine and end and this be  now but as a lease make by the husband alone of the land of the wife and this  be vanan potenia who never to lead back in sharply and this possibility of  election and affirmation of the lease by the death of the wife be cut off and  fall to the ground and so the survivor or any stranger shall have benefit and  take advantage hereof coke chief justice a lease for year make by one  jointtenant for life this shall be good against the survivor and so it be if  one jointtenant for life make a lease for year to begin after his death this  be good so be Harbin Bartons case Bulstrode er p dodderidge justice by h if  the husband make a lease of the land of the wife by indenture and the wife die  the husband shall have a action of debt for the rend upon the indenture before  the heir enter yet the estate be go from the husband Haughton justice if  tenant in tail make a voidable lease for that the same be not warrant by the  statute and die the guardian in chivalry may avoid this lease for his time as  touch this vide coke pars fol the county of Bedford case coke agree with he  herein for that this be do by he in right of the heir but a lord by escheat  shall not avoid such a lease as this case here be for the Bulstrode coverture  of the wife in this principal case here put the husband out of the case and so  if the feme be jointtenant with another make a lease for year to begin after  her death this be go because by his death the whole estate be at a end and go  if baron and feme de make a lease for year of the land of the wife render rend  the husband and wife die and the heir of the wife accept the rend there be a  book full in the point that this lease may be make good by the acceptance of  the rend by the heir and so by a inference out of this case before put this  lease here in question be not void by the death of the wife also if baron and  feme and a three person be jointtenants the husband and wife here have but  moiety if they make a feoff of the moiety or if the husband alone make a feoff  of the moiety and die no survivorship there shall be because a possession  stand not in jointure with a right otherwise have it be if they have make a  feoff of the whole there all be turn into a right and there shall be a  survivor if baron and feme make a lease for year of the land of the wife  render rend the wife die without heir the lord by escheat shall not avoid the  lease and so without any further debate this case be adjourn to a further time  for further argument thereof afterward S termin mich James b r this case be  move again urge and judgement at last give therein for the plaintiff  dodderidge justice baron and feme make a lease for year render rend as in this  case the wife die may the husband have a action of debt for this rend if the  estate be go he can this will go far in the principal case here you can have  the rend any long than the estate continue the rend end with the estate if it  be so that the estate be end the contract for the rend will end also this be  but quid pro quo S the rend for the land croak justice baron and feme make a  lease for the life of I S render rend the husband die rend incur I S the  beneficiary and vie die whether a action of debt will lie for this rend  dodderidge it will well lie Haughton justice two jointtenants make a feoff one  of they die the survivor shall avoid this for infancy because he be party to  the feoff here he be to avoid this by reason of the privity a instance may be  where a stranger shall avoid a lease as if tenant in tail make a lease for  year which be avoidable and die the guardian in chivalry shall avoid the same  here a reversion do only survive unto the jointtenant dodderidge without  question this lease here be only avoidable but not void by h but here the wife  die the question now be what continuance this lease now have whether the same  shall still continue or not this lease shall still continue and be now become  to be unavoidable the case remember of infant and of feme covert de not come  unto this case two jointtenants infant make a feoff in fee they shall have two  writ of dumb to be infra lifetime but in a writ of right they shall join if  land be give to two and to the heir of their body they lose by default they  shall have several action but these case put of jointtenants be upon another  reason than the case now in question Montague chief justice baron and feme  here de make a lease so the freehold be charge with the charge make upon the  estate the jointtenants estate for life survive who shall avoid this charge  the franktenant survive but the interest remain the freehold survive with the  charge this lease here thus make be a good lease and to have continuance a  parson make a lease for year to begin after his death the which be confirm  this be a good lease as to the rend here reserve this be not material this  lease be Bulstrode er p avoidable only by the wife the which now by her death  be become impossible Bulstrode to be avoid vide coke pars fol in Whittinghams  case as touch this matter dodderidge in the case before remember the husband  can have a action of debt for the rend the contract be determine with the  estate Haughton the lease here be good and shall have continuance and the  survive jointtenant shall not avoid this lease at this time the court be clear  of opinion that the plaintiff have a good title by force of his lease make  unto he and that the survive jointtenant can avoid the same and so at this  time it rest upon a curian beyond advisare vult afterward at another time this  case be move again for the judgement and resolution of the court Montague  chief justice in this case we be all of we agree that this be a clear case and  without any question for the plaintiff that this his lease make unto he be a  good and a continue lease and unavoidable by the survive jointtenant and  therefore without any further argument the rule of the court be quod judgment  to go into pro to express grief