Sacheverel v. Dale , 1 N.C. 268 ( 1793 )

Doderidge, J.

By the words without impeachment of waste, the lessee has an interest. Clearly so: but it shall not endure any longer than his estate. When here a lease is made, it goes out of all the estates and binds them all. So when he reserves the trees, the reservation is well; for it was according to the intention of the parties, and it is not contrary to law. Otherwise it would be an absurdity, for the lessee has power to cut and sell the trees and make leases, and yet by making the lease he cannot reserve his interest. And this does not resemble the exception of the trees by lessee for life or years, without such an interest; or it was a trick devised to oust all the lessors of their action of waste. But now when the lessee dies, although the reversion comes to him in the remainder for life, with the same privileges, the question is, whether the exception shall aid him, or whether during this term for three lives, he may not cut the trees? for the exception out of the exception is determined by the death of the lessor, and the lessee is only to have the ordinary botes of a tenant for life.

Jones, J.

I agree that by the words without impeachment of waste, he has an interest. 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 fee on what point this case turns; what we agree upon, what we differ in, or are in doubt about, govern yourself accordingly. Poph. 193.