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the appurtenances, and the inheritance thereof. * 17 February, 1715, Harding and his wife performed their part of the agreement, by conveying a moiety of the mortgaged premisses, in trust for Chandler and his heirs. But the mortgagee does not convey the term and inheritance of the mill and two closes to Harding and his wife and the heirs of the survivor{d). But there was a special covenant, that till a conveyance should be executed, he was to stand seised to the same uses: and Harding and his wife continued in possession of the premisses.

] 1 January, 1718, There being no issue male of the marriage, an indenture was made, between Harding and his wife of the one part, and Sir Francis Page and Robert Simmons of the other part; reciting the settlement, 16th August, 1695, and covenanting to levy a fine, to assure the premisses to the use of the daughters of the marriage, as tenants in common; and in default of such issue, to Page and Simmons, and their heirs, in trust for the said Elizabeth Harding, her heirs and assigns, to the intent, that she might at any time during her life, without her husband's concurrence, dispose of the reversion of the moiety aforesaid, to such uses as she should, by her will or other writing, appoint, and for no other use, intent, or purpose whatsoever (e). A fine was accordingly levied. There was in fact no daughter of the marriage; but the wife survived the husband, and died without making any appointment, and without heirs on the part of the father, from whence the land descended. But Burgess, the plaintiff in the original cause, was her heir, on the part of the mother.

Burg us

p. Wheate.

[ * 126 ]

Harding performs his part; but the covenant of the mortgagee still subsists. (G«. did Harding appoint such conveyance?) (Qu. de ceo.) Conveyance of Harding's moiety to use of the daughters of the marriage. Remainder to trustees in trust, to attend the disposition of the wife.

id) By indenture, bearing date the 26th and 27th of February, 1713, N. Harding, and E. his wife, conveyed their moiety of the laid mortgaged premises to the trustees and their heirs, in trust for the mortgagee, Junes Chandler (son of John Chandler), and his heirs, who, with the personal representative of John Chandler, covenanted that they would at any time thereafter, at the request and charges of the said N. H. and E. his wife, assign and convey the said several terms, and the inheritance of the said mill, Sec to the said N. H. and E. his wife, or the survivor of them, and the heirs and assigns of such survivor. No assignment was ever made, nor did the trustees make any conveyance of the inheritance; 1 Eden, 180.—" No alteration was made by the settlement of 1695, except giving Harding an estate for life, because the last limitation to the right heirs of E. H. was her old estate;" MS. Serj. Hill.

(?) "The rule of law was, as to the estates in this deed, determined, according to Clarke's argument, in Abbot v. Burton, all the reports of which are cited in 14 Vin. Abr. 289, pi. 6 [Salk. 590, 11 Mod. 181, 1 Com. R. 160,] and long before in 2 Roll. Abr. [Uiet, (D)J, or 22 Vin. Abr. Uses (D), pi. 4; and even as to an equitable estate also; lb. pi. 2, 7. The estate by this deed was therefore to go to the paternal heir, VOL. I.

except as to the mill and closes, without
alteration of the course of descent, and
there was no need of any argument; and
it is strange that Lord Ilardwirke should
have sent it to IS. R., and still more so,
that it should have been so much argued
in Chancery, after the cases of Abbot v.
Burton, and Godbolt v. Freestone [3 Lev.
406], directly in point, and many other
authorities founded on the like principles,
Vin. Abr. Uses. Notwithstanding all which
it appears, that the principle of the deter-
mination of this case, according to Clarke's
opinion, has been doubted. Add to these
authorities, above referred to, that of Jenk.
220, which I apprehend is clearly right,
that the course of lands cannot be altered,
but by act of Parliament: and that it is
also clear, that the heir, taking either by
express limitation, or for want of a limita-
tion or disposition from him of a reversion
after particular estates, which is called by
some a resulting use, takes by descent,
and not by purchase: though if the heir
had taken by purchase, i. e. by description
under a devise in a will to the testator's
heir;—at common law ;—or even in a
deed of uses, perhaps it might have been
otherwise: 2 Vern. 733."—MS. Serjeant
Hill.—See also Allen v. Heber, ante, 22,
and the cases there referred to, n. (c);
and Harg. Co. Lit. 12 a, el seq.

Fine.

No daughter.

No appointment.

Wife dies after her hu.band, sons heir ex parte paternd.

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Trustee in pos

session.

Bill.

Answer.

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Decree.

Case stated in
B. R.

Questions and
Answers.

After the death of Elizabeth Harding, Sir Francis Page got into possession; and in July, 1739, this bill was filed against him by Burgess; and, he dying, it was revived against his personal and real representatives. Bill prayed, that if there was any legal interest in Sir F. Page, he should be compelled to convey to plaintiff, deliver up possession, and account for the rents and profits. Sir F. Page, by his answer, insisted, that he was ♦lawfully seised of the inheritance of the estate, and entitled to the rents and profits.

On the 14 July, 1741, the cause came on to be heard, and went off, for want of parties. The Attorney-General was made a party, and the cause came on again before Lord Hardwicke, Chancellor, the 11 February, 1744, when a decree was made, that a case should be settled, and questions stated, for the opinion of the Judges in B. R. The case was argued there, and they have certified their opinions to the Lord Keeper.

Qu. 1. Whether by virtue of the indenture of the 11 January, 1718, and the fine therein mentioned, any and what estate in law, did pass to Page and Simmons, or either of them?

Answ. That by the indenture of the 11 January, 1718, and fine, the reversion in fee-simple after the death of Harding and his wife without issue male, did pass to Page and Simmons.

Qu. 2. In case no estate passed to Page and Simmons, or either of them, by virtue of that indenture and fine, Whether the inheritance of the premisses, or any part thereof, did, on the death of Elizabeth Harding, descend to Burgess, as heir at law, on the part of the mother?

Answ. In case no estate had passed to Page and Simmons, by virtue of the said indenture and fine; we are of opinion, that the inheritance of the premisses in question, or any part of them, would not, on the death of the said Elizabeth Harding, have descended to Burgess, as heir at law on the part of the mother.

Qu. 3. In case the said deed of the 11 January, 1718, had not been executed, or the fine levied, but the same were entirely out of the case; Whether the inheritance of the said premisses, or any part thereof, would have descended to the said Richard Burgess, as heir at law on the part of the mother? [ * 128 ] * Answ. In case th,e deed of the 11 January, 1718, had not been executed, or the fine levied, but the same were entirely out of the question; We are of opinion, that, upon the death of Elizabeth Harding, the inheritance of the premisses, or any part thereof, would not have descended to Burgess, as heir at law on the part of the mother. But we are of opinion, that, if the mill, &c. had been conveyed to Nicholas Harding and Elizabeth, his wife, and the survivor of them, and the heirs of such survivor, according to the covenant in the release of the 22d February, 1713, they would have descended to the said Burgess, as heir at law on the part of the mother.

After this certificate was returned, the Attorney-General, on Burgess behalf of the Crown, filed an information; insisting that Sir F. "■

Page, by the deed of 1718, had no beneficial interest in the "EAT1- . estate in his own right, but was a mere trustee for the benefit information by of Mrs. Harding, or her appointee or heir; and in default of G'en'erai.rDey" such appointment or heir, that he was a trustee for the benefit On behalf of tinof his Majesty, who stands in the place of such heir; and that Crown. the premisses were escheated; and that the representatives of Sir F. Page ought to convey to the use of his Majesty. To Answer and this there is an answer put in, and issue joined; and the in- issueformation is now at hearing, and the original cause is now set down for farther directions. This is the state of the case, of the cause, and of the several claims of the parties.

I shall now proceed to consider these claims in order.

First, the claim of the plaintiff, Burgess, as heir at law, ex parte maternd, in default of an heir ex parte paternd.—This claim I see no ground for, considering the certificate of the Judges, which Lord Keeper proposes to confirm. The ques tions stated for B. R. have left the point open to the maternal heir, if there was any ground of right; nnd * their answers [ *129 ] have effectually precluded him, in case he has no equity. And what ground of equity has he? What has been insisted on is mere matter of law, and would open the questions again which are concluded. For, by the deed of 1718, 'tis held he took nothing;—that the trustee thereby took the legal estate, and no new use was created by Mrs. Harding. The only thing suggested by that side, that has the colour of equity, is,—That Mrs. Harding might have prayed and compelled a conveyance from the trustee, while she lived, by which she would have been seised to new uses; which, in default of heirs ex parte paternd, would have gone to the heirs on the part of the mother: and, that it is a rule in equity, "That what ought to be done, or is agreed to be done, is looked upon as done." Had such a conveyance been executed, it would have been like a feoffment and re-feoffment, and have made her seised of a new use(y); but as it was not done, the consequence insisted on

(/) " A fine, with grant and render, is very against the tenant, to which the teby some authorities said to be tantamount nant in tail comes in as vouchee, the course to a feoffment and re-feoffment; 11 Vin. of descent will not be altered by the exAbr. 288, pi. 5: but the principal case press declaration of the uses to the tenant there is contra; but all the authorities are in tail and his heirs; Salk. 590 [dbbot v. agreed as to a feoffment and re-feoffment: Burton]; 18 Vin. Abr. 374, pi. 11."— 5 T. R. 105 [floe v. Baiduere]: and note, MS. Setj. Hill.—That a fine eur done, that it does change the descendible quality, grant et render alters the descent, see On the other hand, all the latter authori- Price v. Longford, 1 Show. 92, 1 Salk. ties are, that a fine, if it be not sur grant 337, Carth. 140, Holt, 253. if a tenant et render, will not change the descendible in tail by purchase under a marriage sctqnality, and that there is no difference, dement made by his maternal ancestor, whether the use result or be expressly dc- with the reversion in fee by descent ex dared. Hob. 31 [Counden v. Clerke], to parte maternd, suffers a common recovery the contrary, is denied in 2 P. Wms. 138, to the use of himself in fee, the estate will ^^ 139 [Harris v. Bishop of Lincoln]. Yet descend to his heirs ex parte paternd; bethough there is a fine and uses declared to cause the fee acquired by the recovery make a tenant to the pracipe, and a reco- will descend in the same manner as the

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Burgess

Wheatk.

[Therefore the case is defective' ly stated in this point.]

will not follow; for nothing is looked upon in equity as done, but what ought to have been done; not what might have been done. Nor will equity consider things in that light in favour of every body; but only of those, who had a right to pray it might be done. The rule is, that it shall either be between the parties who stipulate what is to be done, or those who stand in their place. Here Mrs. Harding never prayed a conveyance, and one cannot tell whether she ever would; and the maternal heir is not to be considered as a privy in blood, but a mere stranger. This very cause warrants the distinction here taken; i. e. with regard to the mill, &c. mentioned in the opinion on the last question. It stands thus: Nicholas Harding, after having agreed to release to Chandler the equity of redemption of a moiety in the mortgaged premisses, agrees to

()urchase of Chandler the mill, &c. and makes Chandler stipuate to convey these premisses to him and his heirs, or such 1>erson as he should direct. The equity of redemption was reeased, and then * Chandler stipulates to convey to Harding and his wife, and the survivor of them, and the heir of the survivor. The consequence is, that Mrs. Harding takes this estate, not as the old use, but by purchase under the appointment of her husband; which enlarges the course of descent beyond that of the old use. And since what is covenanted to be done is considered as done, the mill goes in a course of descent (in default of paternal heirs) to the heir ex parte maternd. In the deed of 1718, there is nothing like such a covenant, nor any thing which shews, she intended to enlarge the course of descent. Wherefore, under these circumstances, as the opinion of the Judges is proposed to be confirmed, I think there is no ground for the claim of the maternal heir.

Secondly, The next claim is on behalf of the Crown; to which there are two preliminary objections.

1st. That the claim of the Crown is premature; there being no office found, or inquisition taken, to find a title in the Crown. There are cases where such previous step is necessary: where the Crown wants to make a seizure, and to take possession of the freehold and inheritance; there its title must appear by matter of record, whether judicial or ministerial, or whether the conveyance itself be matter of record, or matter of fact founded on record.—This is the constant barrier between the Crown and the subject; and the effect of it is, to put the subject on interpleading with the Crown, by traversing its title or setting up a better, in a monstrans de droit, or petition of right. The judgment, if the subject succeeds, is amoreat manut; but he loses the intermediate profits, which are accounted for in the Exchequer; 4 Co. 55. Baxters Case, 75. Finch. 325.—It is the prerogative of the Crown not to interplead with the subject before they take possession.—But it

13

estate tail acquired by purchase from the maternal ancestor j that is, to his paternal heirs; Martin v. Strachan, 5 T. R. 107, n.

ante, 22, n. (<■): see also Goodrich! m. Wells, 2 Doug. 771; Dot x. Mergam, 7 T. R. 103.

said, may not the Crown, where it has a legal title, in lenity to
the subject, waive that prerogative, and interplead with the
subject, as one subject may with another?—'Tis clear the ^
Crown may. The office is circuitous, expensive, and attended
with the loss of mesne profits to the subject. The Crown may
refuse to alter the possession, till the right is determined, and
*only proceed by information of intrusion; even where they have [
a legal right, on an office, which may warrant a seizure. But
the present case is stronger; for if a finding for the Crown had
been, under office and inquisition, it must have been fruitless,
ineffectual, xaAfelo de se. It must have found all the matters
aforesaid: Mrs. Harding's seisin; conveyance to, and the legal
title in, Page;—and an inquisition will not entitle the Crown
to seize, where there is a legal title in possession in another.
The Crown might have recourse to equity, if the Crown has
any equity. It was said, there might be a finding for the
Crown, on an equitable title; Holland's Case, Aleyn 14. But
then it was answered, this was a copyhold, and the Crown
could not hold of a mesne lord. It is true, that in fact an office
was found; but an amoteas manus was awarded, not on the
merits of the case or the exceptions there taken to the venire,
but an objection was taken by the Court itself to the commis-
sion, that there was no direction for seizing. This was an ob-
jection taken probably on a foresight, that as to the merits of
the case, they could not succeed. Lord Hale was of council
for the Crown in Holland's Case; and he, in Sandys Case,
Hardr. 488, shews, that the only proper remedy for the Crown
to pursue was by bill in equity. He says, the King could not
have entered in point of law, and a bill of intrusion did not he;
and the only proper remedy was in equity. It is properly said,
that the estates being copyhold might be a reason, why the
equitable remedy was not pursued. This case is rather an
authority, to justify the remedy now pursued by the Crown,
than one to found an objection on. Therefore the objection
for want of office is groundless; and a bill or information is the
only proper remedy (g).

Objection 2. This is not the proper Court for the Crown to institute a suit in; but it should nave been a Court of Revenue. This is a strange objection to be made in any case. And, as the circumstances are, it is still stranger to be made in this;

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(g) " Where the King's tenant is in possession, and dies without heir, the King hath not only a legal seisin, as in the like case subjects have; but he hath an actual seisin. Therefore if any enter, and take the profits, though no office be found; yet an information of intrusion may be preferred against him, who entered; but when another is in seisin and possession at the lime of the escheat, as if the king's tenant is disseised and dies without heir, or if an alien born, or the alienee in mortmain is disseised, and all this is found by office; in these cases the King shall not be in possession, till the possession and seisin of the

terre-tenant is removed; 4 Rep. 58 a, Comminalty of Sadlert. In the present case, the heir of the surviving trustee was in seisin and possession, and therefore the want of an office found would have been a good objection, if the Crown's title had been legal. For wherever an office is necessary to vest the estate in the Crown, as in the case of a purchase by an alien, there there must be an office found, before the title of the Crown can be determined; Parker, 152, 153, 161,162 [A. G. v. Duplestisi]." MS.Serj.HllL.—Sec also Rtevt v. 4. G. 2 Atk. 223; 16 Vin. Abr. Office (D; pi. 15; Com. Dig. Prxrog. (D 70).

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