Judges: JONES, J.
Filed: Jul. 05, 1793
Latest Update: Mar. 03, 2020
Summary: 2. The second exception is void because repugnant to the first. Like a lease of land reserving the profits, for he leases, except the woods and underwoods, except the tops of the trees. By the exception of the tops, he has in part frustrated the first exception. Adjournatur . On another day, the case was put: The tenant in fee levies a fine to his own use for life, without impeachment of waste, with power to cut and sell the trees; remainder to another for life; remainder in fee with power to th
Summary: 2. The second exception is void because repugnant to the first. Like a lease of land reserving the profits, for he leases, except the woods and underwoods, except the tops of the trees. By the exception of the tops, he has in part frustrated the first exception. Adjournatur . On another day, the case was put: The tenant in fee levies a fine to his own use for life, without impeachment of waste, with power to cut and sell the trees; remainder to another for life; remainder in fee with power to the..
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I agree that by the words without impeachment of waste he has aninterest. But if he does not use it during his estate, it is gone; for it is its concomitant. Therefore, if he grants his estate, reserving the trees; it is not well. But in this case he has not granted every thing away; and the reservation is good; for there is the possibility of the reversion after the three lives. Therefore, if a tenant after possibility grants his estate, reserving the trees, the estate is void; but if he leases for years with such a reservation, it is well. I say nothing as to the exception. As to the cutting by him in remainder, it is a question. I think that the estate of three lives operates partly out of the first estate, and partly out of that of the lessor. He shall hold it liable to the charges of the lessee for life.
WHITLOCK, J., concurred.
DODERIDGE, J., to Noy. You see on what point this case turns; what we agree upon, what we differ in, or are in doubt about, govern yourself accordingly. Poph., 193.
