
    Elias Horlbeck vs. The Protestant Episcopal Church of the Parish of St. Philip.
    Leases, renewal of — Act of Assembly.
    
    By Act of 1770, the vestry and wardens of a parish, church were authorized to divide part of the glebe lands into lots, and grant leases of the same for thirty-one years, “and from time to time after the expiration of the said leases to renew the same, provided such renewed leases do reserve the same rent, or a greater rent, not exceeding as much again as the first rent reserved by the former lease, and do not exceed the said term of thirty-one years, and so on from time to time as such renewed leases shall expireand that on every renewal the lessee “ do pay a fine equal to two years rent reserved on said first-made lease.” The original leases were made in 1770. In 1838, on the second renewal of one of them, double the rent of the first lease was reserved, and in 1864 the vestry and wardens refused to renew again unless double the rent of the second renewal was reserved. Meld, that the words "the first rent reserved by the former lease” meant the rent reserved by the first lease, and that the vestry and wardens had no right t.o require that double the rent of the next preceding lease should be reserved.
    BEFORE JOHNSON, OH., AT CHARLESTON, NOVEMBER, 1866.
    This was a bill for specific performance. The following is a brief of the bill:
    Elias Horlbeck, of Charleston, physician, complains, on behalf of himself and all other persons, having similar interests and rights with himself in the. matters in bill stated, who shall come in and seek relief by and contribute to the expenses of the' suit.
    Sets forth the Act passed in Council Chamber of the Colonial Legislature, by Governor and Council, (7 St. at Large, 79,) on the 7th day of April, 1770, entitled “An Act for laying out and establishing several new streets in the northwest part of Charlestown, and for building a new parsonage house for the Parish of St. Philip, Charlestown, and for empowering the Yestry and Church-Wardens of said parish, for the time being, to lay out part of the glebe land' of the said parish in lots, and to let the same out on building leases, and for other purposes therein mentioned.”
    That by indenture in 1797, recorded R. M. 0. office, • Charleston, Book S. 10, 425,. the glebe lands were partitioned between the churches of St. Philip and St. Michael.
    That by the A. A., 1770, the vestry and wardens of the Parish of St. Philip, in December, 1770, caused the lands to be surveyed, and laid out into thirty-eight lots, and put them up for sale to the highest bidder, and that Charles Pinckney purchased the lots Nos. 19 and 20, at the yearly rent of ¿£29, then late current money, equal to seventeen dollars seventy-six cents for each lot.
    That, on the renewal of the original leases thereof, the same were granted to William Greenwood, assignee of Charles Pinckney, on leases to expire 25th March, 1833, and became afterwards vested in Richard Lord, trustee of John Horlbeck and Maria his wife.
    That, on the 25th March, 1833, two several indentures were made between the vestry and Mr. Lord as trustee as aforesaid, by which the lessors — reciting the A. A., 1770, the survey and laying out of the lots, the sale of the lots 19 and 20 to Charles Pinckney, and his purchase at the rent aforesaid, and the renewal of the leases to William Greenwood, assignee of Charles Pinckney, and subsequent vesting thereof in Mr. Lord as trustee, and that he had paid a fine of thirty-five dollars fifty-two cents on each lot, being equal to two years rent reserved on the first-made leases, and had agreed to pay the yearly rent of thirty-five dollars fifty-two cents for the purchase of the renewal leases of each lot — demised the said lots by their respective descriptions, to hold for thirty-one years, yielding the rent of thirty-five dollars fifty-two cents for each lot, to be paid annually. That if the same should be in arrear for twenty. days, the lessors should have the right to re-enter, and to eject and amove the lessee, with power of distress also reserved to enforce payment of the rent.
    That Mr. Lord covenanted to pay the rent and all State and other taxes and rates, imposed or to be imposed, and at his own cost and charges to erect on each lot a substantial two-story house, 36 by 18 feet on the one, and 30 by — on the other, with ceilings at least nine feet in the clear, and to maintain, uphold, and keep the same in tenantable repair, and, at the end of the term or other sooner determination thereof, to leave and surrender the buildings and all the improvements to the lessors.
    It was provided that the lessors, at request of the lessee, would renew the leases at the expiration of the terms, according to the directions of the Act, if request be made in reasonable time for such renewals.
    And the lessors reserved the right to enter to view the premises twice per year, and covenanted for quiet enjoyment.
    That Mr. Lord, 23 April, 1842, assigned the lease of lot 19 to complainant. That on 3 August, 1839, lessors extended the time for the building thereon until 25 March, 1846. That Mr. Lord, on the day of April,. 1846, assigned the lease of the lot 20 to complainant. That on the 3 August, 1839, the lessors extended the time for the building thereon until 25 March, 1846.
    That complainant, in pursuance of the covenant, and in full expectation and confidence of a renewal of the leases, has erected very valuable and costly buildings on the said lots, and has always paid his annual rents. That the terms determined 25 March, 1864. That on the day of 1863, and at divers times since, he has applied for renewals of the leases, and tendered payment of the several fines, and to execute indentures with like covenants and agree-mente as in the former leases, and to pay the rent reserved thereupon on the renewals thereof, according to the A. A., 1770, and has always been ready to accept the said renewals on the terms of the said leases, but thelessors have refused.
    Sets forth the refusal of the lessors, and that they require complainant to pay double the rent reserved on the leases last expired, and charges that they are bound to renew on the payment on each lease of the fine of double the rent reserved on the first-made lease, and on complainant’s covenanting to pay an annual rent on each lease equal to double the rent reserved on the first-made lease.
    Prays that the lessors may answer the premises, and that the renewals may be specifically executed, and that defendants may be decreed to execute them on the terms charged, and for general relief.
    Brief of answer of the vestry and church-wardens of St. Philip’s church.
    The defendants, saving all right of exception, admit the statement of complainant’s bill in relation to the Act of 1770, the laying out of the glebe into thirty-eight (38) lots, according to the plan referred to, the sale of the said lots, the division of vestries and church-wardens of the churches of St. Philip and St. Michael into two separate corporations, and the division of the glebe land between the said churches, and that the lots described in complainant’s bill were allotted to St. Philip’s church. They neither admit nor deny the allegations of complainant’s bill in relation to the original sale of the lots 19 and 20 to Charles Pinckney, and the several assignments by which the right of renewal is vested in complainant, and the extension by the vestry and wardens, in 1839, of the time for the erection of the buildings covenanted to be erected on said lots, because the counterparts of the lease of complainants which were in possession of the defendants were destroyed, among other papers, in the city of Columbia, and pray that the proofs of the material averments may be produced by complainant.
    They admit that complainant has erected very valuable buildings upon the lots leased to him, and that he has paid the annual rent during the terms, and that the terms determined on the 25th day of March, 1864.
    They aver that, previous to the expiration of the leases, notice was given to all the lessees that the defendants were willing and ready to renew the said leases to such persons as were entitled to renewal of the same, upon payment of the fines stipulated to be paid for such renewal; and the rent reserved upon such renewed lease would be as much again as the rent reserved in the then existing leases; that the complainant, and some others of the lessees, offered to pay the fines for renewal required of them, but denied the right of defendants to increase the rent, upon the renewal of the leases, beyond the amount reserved in the leases then about to expire, and notified them of their intention of testing before the Court the defendants’ right so to increase the rents.
    That these defendants expressed their willingness to have the said question submitted to the Court, and agreed that the delay necessarily consequent thereupon should not prejudice the right of the tenants to renewals; and further agreed that the question raised should be decided in one case for the benefit of all having a like interest.
    They admit that it is incumbent upon them to renew the said leases, and to prepare and execute the same at the expense of the lessees, and are prepared to- do so as soon as the Court shall determine the question as to the amount of rent which these defendants may reserve upon said renewals.
    That the defendants and the complainants differ only in one particular, and that is, as to the amount of the annual rent which shall be reserved in the renewal leases, to which complainant is entitled upon the payment of a finé equal to two years rent reserved in the first-made or original lease, and about which there is no dispute; these defendants refusing to renew unless the rent reserved in said renewed leases is as much again as the amount of the rent reserved in the former leases, while the complainant insists that these defendants cannot increase the rent to be reserved in the renewed lease beyond the amount reserved in the lease which has just expired, inasmuch as the rent so reserved in the last lease was already as much again as the first rent reserved in the original lease, beyond which amount he contends that the rent upon renewals cannot be increased.
    Defendants submit themselves to the order and decree of the Court, upon the point raised in the bill, and agree to renew the leases of complainant and of-all other tenants who hold under similar leases, and who will come in under the proceedings in the cause, and establish their right to such renewals, upon their complying with the terms and conditions with which they are under covenant to comply.
    The decree of his Honor, the' Circuit Chancellor, is as follows:
    Johnson, Ch. On hearing the -pleadings in this case and the argument of counsel, it is ordered and decreed that the vestry and church-wardens of. the Protestant Episcopal Church of the Parish of St. Philip, in Charleston, in the State of South Carolina, renew the leases of the glebe lands made under the authority of the Act of Assembly of 1770, and which expired on the twenty-fifth day of March, A. D. 1864, to the assignees of the original leases, who shall establish their right as such assignees to renewal before James Tupper, Esq., one of the Masters of this Court, by the first day of April next, and who shall pay the fines for renewal prescribed in the said leases, and the costs of the leases respectively, and who shall contribute to the expenses of the complainant in proportion to their respective interests.
    And it is further ordered and decreed that the said leases shall be renewed for the term of thirty:one years from the expiration of the last leases, to wit, the twenty-fifth day of March, 1864, and that the rent reserved upon the said leases shall not exceed the rent reserved in the said leases last expired, and shall contain the same covenants as the last expired leases.
    And it is further ordered that the complainant’s costs be paid by the complainant, and such lessees as shall come in under this decree, and establish their right to renewal, in proportion to their interests, and the other costs by the defendants.
    And it is lastly ordered that the parties have leave to come in and apply at the foot of this decree for any further orders which may be necessary in the cause.
    The defendants appealed, on the ground :
    Because his Honor, Chancellor Johnson, erred in ordering that, upon the renewal of the lease to complainant, the rent reserved shall not exceed the rent reserved in the lease last expired; whereas, it is submitted that, according to the provisions of the Act of 1770, the defendants have the right to increase the rent to be reserved upon such renewed lease, not exceeding as much again as the rent reserved in the former lease last expired.
    Miles, for appellants.
    
      First. The construction of the leases is not to be affected by the acts of the parties: Bay-man vs. Guy’s Hospital, 3 Ves. 295; Moore vs. Foley, 6 Ves. 232; Iggulden vs. May, 9 Ves. 324; Same case, 7 East, 244;
    
      
      Same case, in Exchequer Chamber, on writ of error, 2 New Rep. 449 ; Glifton vs. Walmsley, 5 T. R. 565; 2 Pratt on Leases, 727-729, citing later cases.
    
      Second. The right to double the rent upon every renewal is clear upon the words of the Act of 1770, 7 Stat. 95. Sec. YI., after reciting that, by laying out certain streets therein directed to be laid out, a great part of the ancient glebe of St. Philip may be leased out to great advantage, for the benefit of the rector of the parish and other purposes, enacts, that the vestry and church-wardens of the said church and their successors in office for the time being, or a majority of them, shall have power and authority, and they are authorized, directed, and required, to lay out a parcel of the glebe land for erecting a new parsonage house; and when that is laid out—
    1. “That then the said vestry and church-wardens for the time being, or a majority of them, shall divide and lay out all the remaining parts of the said glebe (except such part as is hereinafter particularly specified to be absolutely sold) into such and so many lots, pieces, or parcels of land as they, in their discretion, shall think most proper and advantageous to be let out by them, on written leases, with reserved rents thereon, for the use of the said rector or minister for the time being, and such other use as is hereinafter declared concerning the same, for any term or time not exceeding thirty-one years.”
    These words authorize the vestry and wardens to lay out the glebe in lots to be let.
    2. The words next following authorize the vestry and wardens for the time being to execute the leases: “ and that the said vestry and church-wardens for the time being, or a majority of them, shall forever hereafter have full power and authority to make and execute such lease or leases, with proper covenants, to be inserted therein, for the better improvement of the said lots of land, with the buildings thereon, and for the more easy recovery of the rents to be reserved by the said lease or leases.”
    3. The next clause gives authority to the vestry and wardens, on the expiration of these leases, to renew them, and prescribes the terms of such first renewals : “ and from time to time, after the expiration of the said leases, to renew the same, provided such renewed leases do reserve the same rent, or a greater rent not exceeding as much again as the first rent reserved by the • former lease, and do not exceed the said term of thirty-one years.”
    4. Erom the words which next follow, and from those alone, is the right of perpetual renewal derived : “ and so on from time to time, forever hereafter, as such renewed leases shall expire."
    
    The effect and meaning of these words is, that every renewal after the first shall be upon like terms and conditions as the first renewal — that is, that the rent reserved shall be the same, or greater, not exceeding as much again, as the rent reserved in the preceding lease.
    5. The remainder of the section provides “ that, on every such renewal of the lease or leases of any of the said lands, the person or persons, lessee or lessees thereof, do pay a fine equal to two years rent reserved on such first-made lease or leases: and provided, that in all cases of renewed leases, forever hereafter, the original lessee or lessees of the said land, and their executors, administrators, and assigns, shall always have the preference of such renewed leases.”
    In the cases of Black vs. The Vestry and Wardens of St. Philip's Ohurch, and Dawes, Executor of Laurens, vs. The same, decided by the Court of Appeals in 1833, Judge O’Neal, in delivering the opinion of the Court, says: "The tenants must pay the fines equal to two years rent not exceeding double the rent reserved on each of the leases last expired. It is ordered and decreed that the church renew upon tbe leasees covenanting to pay a rent not exceeding double tbe rent reserved by the former lease.”
    Third. Tbe Court will lean against construing a covenant to be for perpetual renewal as “ improvident, absurd, and unequal,” and will apply tbe same principle in interpreting tbe language wbicb prescribes ‘the terms upon wbicb such renewals shall be made. Tritton vs. Foote, 2 Br. C. C. 636, 2 Cox, 174; Baynam vs. Guy's Hospital, 3 Yes. 295; Baton vs. Lyon, lb. 694; Moore vs. Foley, 6 Yes. 232; Lg-gulden vs. May, 9 Yes. 324; Furnival vs. Crew, 3 Atk. 82; Redshaw vs. Governor & Co. of Bedford Level, 1 Eden, 346; City of London vs. Mitford, 14 Yes. 41; Watson vs. Hems-worth Hospital, lb. 324; Willan vs. Willan, 16 Yes. 72; Harnett vs. Yielding, 2 Sch. & L. 549; 2 Platt on Leases, 707, et seq.; Bac. Ab., Tit. "Leases and Terms for Years,” U; ‘‘ Benewal of Leases ;” Watson vs. Hinsworih Hospital, 2 Yern. 596 ; Bac. Ab. 240.
    
      Fourth. Tbe usual mode of providing for perpetual renewals “is not by providing directly bow long tbe renewals should go on, but by a covenant with regard to tbe renewal to be introduced into the second lease;” and the same mode is adopted in the Act of 1770 in providing tbe terms upon wbicb all renewals subsequent to the first shall be made. Moore vs. Foley, 6 Yes. 235 ; Furnival vs. Crew, 3 Atk. 83; Willan vs. Willan, 16 Yes. 72; Bayley vs. Corporation of Leominster, 3 Br. Cb. Bep. 237; Attorney- General vs. Smith, 2 Yern. 746, Bac. Ab. 240.
    
      Fifth. The express provision of tbe Act of 1770, by wbicb tbe fines to be paid for renewals are limited to " two years rent on tbe first-made lease or leases,” excludes tbe construction that tbe words used in directing tbe terms of tbe first renewal shall be applied to tbe subsequent renewals. Bxpressio unius est exclusio alterius.
    
    
      Sixth. Tbe glebe lands were not given by tbe State, but were previously given to tbe minister or rector of tbe church by Mrs. Afra Coming, in 1698. Dalcho’s Church History. This statute was to enable the vestry and churchwardens to lease for a period beyond the life of the rector. A rector was, by the common law, a corporation sole, who could not lease for a period beyond his own . life. Coke Lit. 250 a, 300 b; 2 Blackstone, 318; Bac. Ab., Title “Leases,” E.
    
      Seventh. By providing that the lots were to be originally rented at their then market value, and that the rent should not be less but might be greater upon the first renewal, the Legislature showed that it was not intended to cut off the church from the benefit of the subsequently increasing value of the lands.
    
      Simons, Porter, contra.
   The opinion of the Court was delivered by

Dunkin, C. J.

By the “Church Act” of 1706, Charles-town and the Neck between Cooper and Ashley rivers, as far as a certain boundary therein designated, constituted a distinct parish, known as the Parish of St. Philip in Charlestown. In 1751, this parish was divided, and “that part of Charlestown on the southward of the middle of Broad street ” was declared a distinct parish by the name of the Parish of St. Michael.

On 7 April, 1770, (7 Stat. 93,) an Act was passed for the purpose (among other things) of laying out and establishing several new streets in the northwest parts of Charlestown; and for empowering the vestry and church-wardens of the Parish of St. Philip to lay out part of the glebe land in the said parish in lots, and to let the same on building leases. It is recited in the Act that the proprietors of the lands in the said northwest part of Charlestown commonly called Coming’s Point, and the lands adjacent thereto, had, by their petition, prayed that the same might be done; and it was further recited that whereas, by the laying out of the streets aforesaid, according to a plan thereto annexed, a great part of the large and ancient glebe of St. Philip’s Parish, Charlestown, might be divided and put into lots, which might be leased out to great advantage, for the benefit of the rector or minister of the said parish, and for other purposes therein mentioned, and will still leave a large and commodious parcel of land for the habitation, use, and occupation of the said rector or minister; and it was furthermore recited that the rector and the vestry and wardens of the said parish were desirous that the same should be done. Provision was thereupon made that the new streets should be opened at the expense of the proprietors of the lands, and they were thereby declared public streets, &c. By the sixth clause of the Act the vestry and church-wardens of the said Parish of St. Philip were authorized, directed, and required to lay out a parcel, not exceeding four acres, of the land for the building a new parsonage, &c.; and that, when the parcel is so laid off, the vestry and wardens shall divide and lay out all the remaining parts of the said glebe into so many lots, &c., as they in their discretion shall think most proper and advantageous, to be let out by them on written leases, with reserved rents thereon, for the use of the rector and such other use as is thereinafter declared, for any term not exceeding thirty-one years ; and the vestry and wardens are thereby empowered to make such leases, with proper covenants, to be inserted therein, for the better improvement of the said lots of land, with buildings thereon, and for the more easy recovery of the rents to be reserved, &c., and from time to time, after the expiration of the said leases, to renew the same; provided, such renewed leases do reserve the same rent, or a greater rent, not exceeding as much again as the first rent reserved by the former lease, and do not exceed the said term of thirty-one years, and so on, from time to time, forever hereafter, as such renewed leases shall expire; and that, on every such renewal of the lease, &c., the lessee do pay a fine equal to two years rent reserved on such first-made lease or leases as a further consideration for the renewal of such lease; and provided, that in all cases of renewed leases, forever hereafter, the original lessee or lessees of the said land, and their executors, administrators, and assigns, shall always have the preference of such renewed leases.”

In pursuance of the directions of this Act, the vestry and wardens of the Parish of St. Philip, in December, 1770, caused the glebe lands to be surveyed, and laid out into thirty-eight lots, and put them up for sale. At this sale (as the plaintiff alleges) Charles Pinckney purchased the lots Nos. 19 and 20, at the yearly rent of £29, then late current money, equal to seventeen dollars and seventy-six cents ($17.76) for each lot.

It may be here remarked that, subsequent to the survey and sale aforesaid, to wit, in 1797, by indenture duly recorded in the office of Eegister of Mesne Conveyances for Charlestown, the glebe lands were partitioned between the churches of St. Philip and St. Michael, and that, in such partition, the lots Nos. 19 and 20 (among others) were assigned and set off to the Parish of St. Philip.

On the expiration of the leases to Charles Pinckney, (A. D. 1801 or 1802,) the same were renewed to William Greenwood, assignee of Charles Pinckney, on leases to expire 25 March, 1833; which leases became afterwards vested in Eichard Lord, trustee of John Horlbeck and Maria his wife.

On the day last mentioned, to wit, 25 March, 1833, two several indentures were executed between the vestry of St. Philip and Mr. Lord, in which the Act of 1770 and the subsequent proceedings are recited, and that Mr. Lord had paid a fine of thirty-five dollars and fifty-two cents on each lot, being equal to two years rent reserved on the first-made leases, and had agreed to pay the yearly rent of thirty-five dollars fifty-two cents, for the purchase of the renewal leases of each lot; the vestry thereupon demised to him the said lots, by their respective descriptions, to hold for thirty-one years, yielding the rent of thirty-five dollars fifty-two cents for each lot, to be paid annually. If the rent was in arrear , for twenty days, lessors were entitled to enter and eject the lessee, and with a power of distress also reserved to enforce payment of the rent. The lessee covenanted, also, in addition to the rent, to pay all State and other taxes and rates, and, at his own costs and charges, to erect on each lot a substantial two-story house, 36 by 18 feet, on the one, and 30 by— on the other, with ceilings at least nine feet in the clear, and to keep the same in tenantable repair, and at the end of the term, or other sooner determination thereof, to leave and surrender the buildings and all the improvements to the lessors. It was also provided that the lessor should, at the expiration of the leases, renew the same, according to the directions of the Act, on request made in reasonable time, and the lessors reserved the right to enter to view the premises twice a year.

In August, 1839, lessors extended the*time for the building thereon until 25 March, 1846, and on 28 April, 1842, the lease of lot No. 19 was assigned to the plaintiff, who has erected very valuable buildings on the lots, and has always paid his annual rents.

The leases expired 25 March, 1864, and the plaintiff had previously applied for a renewal of the same, tendering payment of the same fines, and an agreement to pay rent as provided in the indenture of 25 March, 1833, which the defendants declined to grant unless he would covenant to pay double the rent reserved by the last mentioned indenture.

By the decree filed 28 November, 1866, the defendants were required (among other things) to renew the leases for the term of thirty-one years, from 25 March, 1861, and that the rent reserved should not exceed the rent reserved by the leases of 25 March, 1833.

The defendants have appealed, on the ground that, according to the provisions of the Act of 1770, they have the right to increase the rent to be reserved upon each renewal lease, not exceeding as much again as the rent reserved in the lease last expired.

From the foregoing statement, it is manifest that the sole question for the consideration and judgment of the Court is, the true construction of the Act of 1770, as to the rent to be reserved'on the renewal of leases, which the defendants are confessedly required in perpetuity to make. The plaintiff relies on this Act, and the covenants made in pursuance of it. If it was not passed at the instance of the defendants, (or their predecessors,) it was certainly enacted with their consent, and with the view of advancing the interests of the church which they represented, as well as for the public benefit. Both parties base their rights on the provisions of the Act of 1770; and the question would seem to be properly circumscribed to the grammatical construction of a legislative enactment. But the argument has taken a wider range. On the one side, it is urged that the conduct of the parties has been in accordance with the construction on which the plaintiff insists, while the defendants submit that the Court “should lean against a construction which would render the terms of renewal improvident, absurd, and, unequal,” as against the lessors, the vestry and wardens of the church.

If it be meant that the conduct of the successors of the former vestry and wardens, done thirty-one or sixty-two years after- the enactment, can be relied on to aid the Court in the construction of a statute, the proposition seems not sanctioned by any of tbe numerous authorities cited. But the duty of analyzing these cases is rendered superfluous, as the evidence indicates no past act of the defendants, in reference to former renewals of the plaintiff’s lease, inconsistent with the construction on which they now insist. The true rule seems, however, to be, that, for the purpose of giving construction to an instrument of this description, the Court should look only at the instrument itself, and at the subject-matter to which it related. Sec. 1, Platt on Leases, 730, and the authorities there cited. To this extent the Court is at liberty to invoke the aid of external evidence, whether in relation to a deed inter partes, a will, or an Act of the Legislature.

Looking then at the subject-matter, it appears (from the concessions of counsel) that these glebe, lands consisted of some seventeen acres of unimproved ground, vested in St. Philip’s Church, under a deed from Mrs. Afra Coming, dated 10 December, 1698, lying in the northwest part of Charlestown, and portion of the land called Coming’s Point. The Act of 1770 required the vestry and wardens to lay out these lands in lots, and to grant leases of the same, with reserved rents thereon, giving them power to execute such leases, with proper covenants, for the better improvement of the said lots of land, with the buildings thereon,- and for tbe more easy recovery of the rents to be reserved by the said leases, and, from time to time, after the expiration of the said leases, to renew the same.

Then follows the proviso under which more than one difficulty has arisen: Provided, that such renewed leases do reserve the same rent, or a greater rent, not exceeding as much again as the first rent reserved by the former lease, and do not exceed the said term of thirty-one years, and so on, from time to time, forever hereafter, as such renewed leases shall expire.” In Black vs. P. E. Church St. Philip, and Laurans vs. Same, Ms. Ct. Appeals, March, 1835, it was held that, under the provisions of this Act, the lessees and their assigns were entitled to a perpetual renewal. The inquiry remains as to the rent to be reserved on such renewal. The proviso contemplated perpetual renewal. Without expunging the word "first,” what other construction can be given than that adopted by the Circuit Court ? If the word be expunged, then, and not till then, can the ambiguity be created, and the defendants be entitled to contend, as urged in their ground of appeal, that "rent reserved by the former lease” meant "'rent reserved in the former lease” last expired. The Court has no authority to expunge or disregard any word of the enactment, but, on the contrary, is bound to give to every word its full effect and meaning, and for this purpose may, if necessary, transpose the words. In this way the sentence may well be read, " reserving a rent not exceeding as much again as the rent reserved in the first of the former leases,” which, would, of course, remove any ambiguity; and the succeeding words of that sentence are thus also perfectly intelligible, "and so on, from time to time, forever hereafter, as such renewed leases shall expire.” Had it been intended, on the contrary, that, on every renewal forever thereafter, the church should be at liberty to double the rent on the lessees, the natural and obvious language would have been, reserving at each renewal “ a rent not exceeding as much again as that reserved in the preceding lease,” and so on, from time to time, forever thereafter, &c.

But the Act provides for something more to be done by the lessee at each renewal, and so on forever. It is declared that, on every such renewal of the lease of any of the said lands, the lessee “shall pay a fine equal to two years rent reserved on such first-made lease or leases.” It is not suggested that any ambiguity here exists, or that, at any subsequent renewal, the lessee should be required to pay a greater fine than double the annual rent reserved by the leases of 1770. The terms used are not identical, but the variance is so slight as not to disturb the conviction that the mind contemplated the same object. Double the first rent reserved by the former' lease, or as much again, as t.he first rent reserved by the former lease,” mean the same, and were intended to mean the same, as “two years rent reserved on such first-made lease.” The difference in the application is, that the fine at every renewal was uniform and fixed, while the annual rent might be varied, provided it never exceeded double the rent reserved in the original or first-made lease. Such is the construction of the Act which was adopted by the Chancellor, and this Court concurs in the conclusion.

Nor is it perceived that this construction renders the covenant, on the part of the vestry and wardens, improvident and unequal,” as urged in the argument. In the matter of the Lawford Charity, 2 Mer. 453, Lord Eldon, commenting on the objection that the rent reserved on the lease was too low in reference to the actual value, says: “It ought to be remembered that the case of a charity estate is one in which, of all others, the security of the rent is the first object to be regarded; and therefore, in such cases, the inadequacy of the rent reserved is less a ground of objection.” These were originally unimproved lots, of moderate dimensions — sixty feet front, by one hundred and eighty feet in depth. The annual rent first reserved on each lot would be about seven per cent, on a supposed valuation of two hundred and.fifty dollars for the fee simple of the premises. The Act contemplated the improvement of these vacant lands, and building leases of thirty-one years were, in general, if not uniformly, granted. The lessee covenanted, not only to pay all State and other “ taxes, rates, and assessments imposed or to be imposed on the premises,” but to erect on each lot a good, firm, and substantial two-story house, of prescribed dimensions, and to keep the same in tenantable repair, and at the expiration of the term, or other sooner determination thereof, to leave and surrender the buildings and improvements to the lessors. The most ample, efficient, and summary provisions are made for securing the prompt payment of the rent, which might be, at any time, in arrear; not only by leave to enter and take possession, and oust the lessee, but also by distress, &c. It is maintained by very high authority that such covenant to keep in repair imposes on the lessee or his assignee the obligation to rebuild, if the premises be burnt by an accidental fire. Bullock vs. Dommitt, 6 T. R. 650; 2 Chit. 608. When to this is added the consideration that, on the forfeiture or failure to renew the lease, &c., the lessors were entitled, not only to the land, but to all the improvements thereon, without further compensation, it is not easy to perceive that the administrators of Mrs. Afra Coming’s charity were* unmindful of the duties of their trust when, in 1770, they consented to an Act which restricted their reserved rents on future renewals to double the original rents on lands which were to derive their enhanced value mainly from improvements to be made at the expense of the lessees, and. without any additional burthen on the trust; nor could their successors be justly charged with acceding to improvident and unequal terms, if, as suggested at the bar, they, in subsequent renewals, acted on the construction of the Act of 1770 now adopted by the Court.

It is ordered and decreed that the appeal be dismissed.

Wardlaw and Inglis, J. J., concurred.

Appeal dismissed.  