Sacheveril v. Day , 1 N.C. 163 ( 1793 )

IN trespass: The case was this: A. seized in fee, covenanted to levy a fine to the use of himself, for life, without impeachment of waste, with power of granting the trees on the land, and power to make leases for three lives, or 21 years, remainder to John, his son, without impeachment of waste, and with the same power, with divers remainders over. Accordingly a fine was levied to the uses aforesaid. A. tenant for life, made a lease for three lives, excepting the trees that grew or might grow afterwards, and died. And the question before the court was, whether the remainder-man could exercise his power of selling, taking and disposing of the trees, during the lease for three lives. They all held that the exception of the trees was well enough, and he may take them at his pleasure at any time during his life. But his executor, or no one after his death can: for it is a power annexed to his estate, which ought to be exercised during its continuance. They all agreed also that the lease for three lives issued of the fine and indenture; and it is well, not only against him who made it, but all those in reversion, and the rent reserved goes to those ,in in remainder. Richardson, Quære, whether such a power of making leases, is good to the son, in remainder? Poph. 1 report 193. What cannot go to the lessee for life, cannot go when a feoffment is to the use of one for life, remainder over. Postea, p. 268. Poph. 193.