
    *Graham v. Woodson.
    [April Term, 1800.]
    Lease for Years — Devise of Rents and Freehold — Surrender of Lease. — A leases to B for 20 years ; with liberty to B of surrendering' the lease at any time before on payment of 6 shillings. A devises the rents during the lease to his five daughters and the fee simple afterwards to his son P who sells to A who surrenders the lease : this surrender shall not disappoint the daughters legacies ; hut A will he decreed to pay the rents.
    Same — Arrearage of Rent — Interest. — Interest allowed upon arrearage of rents, upon circumstances._
    
      This was an appeal from a decree of the High Court of Chancery. Where Josiah Woodson and wife and others brought a bill against Graham and Philip Woodson. Stating, that Mathew Woodson leased to Graham some coal mines in Goochland for the term of 20 years; in which lease there is a proviso, that if Graham should think fit to surrender the lease before the expiration of the term he should have liberty to do so on paying the sum of five shillings. That this lease was made for the sole object of providing more competently for the lessors daughters; and was subsisting at the death of Mathew Woodson ; who devised the same, or, which is the same thing, the money’s arising therefrom to his daughters the plaintiffs. That the defendant P. Woodson being entitled by devise from the said M. Woodson to the reversion of the said coal mines, after the expiration of Graham’s lease, the said Graham, after the death of Mathew Woodson, purchased the said re-versionary interest; and thereupon surrendered the lease, and gave notice thereof to the executrix and devisees aforesaid of Mathew Woodson. That this was done by Graham to obtain the land for less than its value. That by this means the rights of the plaintiffs will be defeated, if the surrender should be allowed to prevail against them; which they insist it ought not, as the plaintiffs are entitled either to the money, or to the unexpired term of years in the land itself. The bill therefore prays an account and payment of the rent till the regular expiration of the lease by efSux of time; or otherwise, that he may deliver possession of the lands to the plaintiff during the residue of the term for which the lease was granted, and for general relief.
    The answer of Graham, admits the lease, and devise. Insists upon his right to surrender under the express words of the lease; and that it was on account of the right to do so, that he had agreed to give so high a rent. That the lease being defeasible in its nature, those claiming the benefits, were subject to the disadvantages of it. That the uncertainty, of its duration, was frequently spoken of in conversations between the defendant and the said M. Woodson. That after searching for coal for some time without any competent success, the defendant in the life-time of the said M. Woodson had determined to annul the lease, unless he should in a short time find a body of coal which promised more. That things were in this state when the said M. Woodson died; and in a short time afterwards the apprehensions of the lease being ruinous to him increasing, he determined to abandon, when he was informed that the defendant P. Woodson would sell, and conceiving that a purchase would be the best means of recovering his expenditures already made upon the lease, he bought the fee simple. That this circumstance induced him to make greater exertions in seeking for coal; •which after great expense he hath at length found in such a degree as to promise success. Yet notwithstanding these prospects he is willing to relinquish his interest in the coal lands, on receiving his expenditures without interest, and a reasonable hire for the slaves which have been employed on them.
    The answer of Woodson says, Graham during the treaty for the reversion, frequently told him, he would give up the lease to his sisters so as to prevent the defendant from receiving any benefit from it. That he sold his right to Graham, without any intention of defrauding the plaintiffs.
    The depositions prove M. Woodson’s intention of providing for his daughters by the lease. That Graham when he bought the fee simple, secured ^100. each to the two j'oungest daughters if they *were satisfied. And one of the witnesses says, that after the purchase, Graham, in a conversation, said to the defendant Philip,that if he had thrown up the lease, he should have done it in favour of the legatees, and not of Philip, as that seemed to be his fathers will.
    The Court of Chancery decreed the defendant Graham to pay the rents with interest, and if he should chuse afterwards to abandon the lease, to deliver the possession of the lands during the unexpired term thereof to the plaintiffs. From which decree Graham appealed to this court.
    Call and Wickham for the appellants.
    Insisted, that it was like the case of a specific devise; the devisee of which is liable to all the casualties, which may attend the thing bequeathed. Thus, if there be a devise of a debt, and the debtor becomes insolvent or the testator releases the debts the legatee loses it altogether, and cannot claim satisfaction out of the other estate of the testator. That the lease in the present case was in its creation liable to be surrendered, and therefore if the testator did not make provision for that event he meant that the interest of the daug-hters should depend upon the contingency in the lease and determine with it, if the lease should be surrendered. Consequently the daughters could no more claim compensation for the loss in this case, than the legatee of a debt could in the other. That the contingency of the surrender was a benefit which belonged to the remainderman; and, if fortune threw it in his way, the daughters could not complain; because they had the devise as the testator gave it to them. For he bequeathed it subject to be destroyed at the election of the lessee, who was at liberty to exercise the right, when he pleased; and the daughters had no authority to con-troul him, because the lease itself expressly bestowed the power on him. That it was strange reasoning to say, that the daughters were injured by the lessee’s exercising a right which he had over the estate, and which right he had stipulated for in express *terms. Consequently the principles of the decree were wholly erroneous, and the bill should have been dismissed.
    But if it were true, that the plaintiffs were entitled to the rents, which they by no means admitted, still the decree for interest was clearly wrong; because that is never given on rents unless there be a pen-altj'. 2 Vez. jr. 163; Cas. Temp. Talb. 2.
    Randolph contra.
    Contended, that the surrender was a stratagem to defeat the interest of the daughters which would not be supported in a Court of Equity; because they were not to be ousted of their rights by a contrivance between the lessee and remainderman. That there was less reason for it, in this case, than in others: because the defendant had in fact bought the estate himself before the surrender; which was a device, afterwards, made use of to defeat the legacies of the daughters; although their claim had enabled him to buy the remainder, at an under rate. That a devise of the rents, and a devise of the term itself, were substantially the same; and the true exposition of the will was, that he intended them to have the emoluments of the land, during the term of the lease. That therefore the change of owners would not affect their interest. For whether the possession of the land was with the remainderman or the lessee, their claim was still the same. So that if the remainderman had retained the lands, he would after the surrender, have been liable for the rents, or else he must have yielded possession to the daughters; and therefore the defendant who had less equity must do the same. That the rents being for a liquidated sum, ought to carry interest; for the uncertainty of the amount is the only reason why interest is not generally allowed.
    Cur. adv. vult.
    
      
      Rent in Arrears —In Cooke v. Wise, 3 H. & M. 491, it is said : “In Graham v. Woodson, 2 Call 249, interest was allowed hy the high court of chancery on the rents in arrear, and that case was affirmed in this court. But there the court evidently proceeded upon the ground of the unconscientious conduct of the defendant, Graham, ‘in endeavoring to defeat the rents altogether’, hy first purchasing the reversion at an under rate, and then surrendering the lease, and thereby delaying the payment." See also, footnote to Mulliday v. Machir, 4 Gratt. 1; Marshall v. Conrad, 5 Gall 406.
    
   LYONS, Judge.

Delivered the resolution of the Court, that there was no error in the decree upon the merits; and as to the interest that it was ^discretionary in the Court to allow it or not. But in' this case the defendant had no title to have it taken off, as he had endeavoured to defeat the rents altogether, and thereby delayed the payment.

Decree affirmed._  