
    *Ross v. Gill and Wife..
    [April, 1794.]
    Guardian and Ward — Termination of Guardianship.— Guardian appointed "by the court.continues to the infant’s age of 21. unless it be revoked.
    Same — Lease—Limited to Period of Infancy. — A lease by a guardian for a longer term than the infancy of the ward, is void.
    Gill and wife, in right of the wife, brought an action of waste against Ross, upon a lease without a seal, made of a plantation and houses belonging to the wife, by Lucy Newsum, her guardian, appointed by the county court. The lease, (the substance of which was set forth in the declaration,) was in the following words: “That David Ross shall occupy and possess the houses and plantation belonging to the estate of Peter Jones, from the 1st Jan’y 1776, until the heir shall marry or come to age, but be at liberty to give it up at the expiration of any of the years, giving three months previous notice; to pay £70 per annum; to leave the plantation in tenantable repair; to commit no abuses in cutting firewood; nor to get more rails than necessary to repair the fences from time to time. Should the heir, when of age or married, want the said houses and plantation, to give the like notice of three months before the expiration of the year; otherwise the said David to remain ’till the ensuing year, on the aforesaid terms.” Plea no waste and issue. The defendant filed a demurrer to -the evidence. Verdict and judgment for the plaintiffs. Ross appealed to the court of appeals.
    Ronald, for the appellant.
    Ross was a trespasser, and not tenant for years, as the lease was void, 1. Because the guardian appointed by the court, only continued until the infant arrived to fourteen years of age, Co. Litt. 89, or at farthest to her age of twenty-one; and the demise goes beyond both periods; which none of the authorities justify. Besides, the powers of a guardian in socage, and those of a guardian appointed by the court, are exactly the same; and *it was held in the case of Roe v. Hodgson, 2 Wils. 135, that guardian in socage could not lease the infant’s lands. 2. Because the duration of the lease is not fixed; for it was to continue until the infant came of age, or was married ; or until the ensuing year, if not put an end to by Ross before, or by the infant at her age of twenty-one: all which was contingent, and uncertain. These points were left undecided in the former case, between the parties to this suit, 1 Wash. 114, and therefore are still open to discussion.
    Marshall, contra.
    The guardianship did not expire at the plaintiff's age of fourteen. Such appointments are for the full period of infancy, unless expressly revoked. That is the true construction of the act of assembly, and it was so decided in the former case. It is not true that .a guardian cannot make a lease. Lor the same act of assembly renders him liable for the income and profits of the estate; and therefore necessarily gives him the power of obtaining them; which, in the case of land, can only be accomplished by leasing it. This, in effect, was likewise decided in the former case, as the appellant was held liable for the rents under the lease. The demise is not contingent; for the contingency goes to the defeazance, but not to the term, which being for the whole period of nonage was perfectly certain, 3 Bac. Ab. 431, 434, 435: And, although it might extend beyond the infancy, yet that ought not to be considered as part of the term; because it was left to the discretion of the ward, at maturity, to make it so or not. Consequently, the case in Wilson does not apply ; because the lease, there, exceeded the term of the guardianship expressly; for it was for twenty-one years certain: which was obviously the point upon which the decision turned; for the court could not have meant to say, that no lease by guardian in socage was good, because that would have been ruinous to the affairs of infants, and contrary to all the precedents. 2 Roll. Ab. 41, pi. 4; 1 Ed. Raym. 131; Bac. Ab. Guardian G.
    
      
      See monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
   *PER CUR.

Although,according to the act of assembly and the decision in the former case between these parties, the authority of a guardian appointed by the court continues, if not revoked, until the infant attains to the age of twenty-one years, yet the lease, in the present case, was void ; because it provided that the term should continue, “till the ensuing year,” after the infant came of age, unless she thought proper, in pursuance of the power reserved to her, to put an end to it; for the power did not affect the main stipulation, as it was collateral, and might never be exercised. The case, therefore, falls within the influence of that of Roe v. Hodgson, 2 Wils. 135, according to the explanation given of it by the appellant’s counsel, which is probably the true one. The judgment in the present case is consequently to be reversed. Nor is there any thing, in this opinion, inconsistent with that in the former case, between these parties: which the court has reviewed, and approves of throughout. But the question relative to the validity of the lease, upon the ground of its being for a longer term than the infancy of the ward, was, purposely, left undetermined, in that case: which was an action of debt to recover the rents accrued during the defendant’s occupation of the premises; and the court thought he could not resist the payment by objecting to a title under which he had enjoyed the property without eviction. But this is an action of tort; and to maintain it, the plaintiffs must establish the validity of the lease; for to be liable under the statute of waste, the appellant must be shewn to be lessee: and that can only be made to appear by a valid demise.

Judgment of the district court reversed.  