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. WHEATE. *126 ] Harding per forms his part; but the covenant of the mortgagee still subsists. (Qu. did Harding appoint such Remainder to wife. 11 January, 1718, There being no issue male of the marriage, conveyance?) an indenture was made, between Harding and his wife of the (Qu. de ceo.) one part, and Sir Francis Page and Robert Simmons of the Conveyance of Harding's moiother part; reciting the settlement, 16th August, 1695, and ety to use of the covenanting to levy a fine, to assure the premisses to the use daughters of the of the daughters of the marriage, as tenants in common; and marriage. in default of such issue, to Page and Simmons, and their heirs, trustees in trust, in trust for the said Elizabeth Harding, her heirs and assigns, to attend the disto the intent, that she might at any time during her life, with- position of the out 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 Fine. fact no daughter of the marriage; but the wife survived the No daughter. husband, and died without making any appointment, and with- No appoint-out heirs on the part of the father, from whence the land de- ment. scended. But Burgess, the plaintiff in the original cause, was Wife dies after her heir, on the part of the mother. (d) By indenture, bearing date the 26th and 27th of February, 1713, N. Harding, and E. his wife, conveyed their moiety of the said mortgaged premises to the trustees and their heirs, in trust for the mortgagee, James 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, &c. 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. wa her old estate;" MS. Serj. HILL. (e) "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, pl. 6 [Salk. 590, 11 Mod. 181, 1 Com. R. 160,] and long before in 2 Roll. Abr. [Uses, (D)], or 22 Vin. Abr. Uses (D), pl. 4; and even as to an equitable estate also; Ib. pl. 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 H her husband, sans heir ex parte paterná. BURGESS V. WHEATE. session. 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 perTrustee in pos- sonal 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 [ *127 ] *lawfully seised of the inheritance of the estate, and entitled to the rents and profits. Bill. Answer. Decree. Case stated in Questions and [ *128 ] 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? * Answ. In case the 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. BURGESS V. WHEATE. After this certificate was returned, the Attorney-General, on behalf of the Crown, filed an information; insisting that Sir F. Page, by the deed of 1718, had no beneficial interest in the estate in his own right, but was a mere trustee for the benefit Information by the Attorneyof Mrs. Harding, or her appointee or heir; and in default of General. such appointment or heir, that he was a trustee for the benefit On behalf of the of 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- issue. formation 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 materná, in default of an heir ex parte paterná.-This claim I see no ground for, considering the certificate of the Judges, which Lord Keeper proposes to confirm. The questions stated for B. R. have left the point open to the maternal heir, if there was any ground of right; and 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 paterná, 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 (ƒ); but as it was not done, the consequence insisted on (ƒ) "A fine, with grant and render, is by some authorities said to be tantamount to a feoffment and re-feoffment; 14 Vin. Abr. 288, pl. 5: but the principal case there is contra; but all the authorities are agreed as to a feoffment and re-feoffment: 5 T. R. 105 [Roe v. Baldwere]: and note, that it does change the descendible quality. On the other hand, all the latter authorities are, that a fine, if it be not sur grant et render, will not change the descendible quality, and that there is no difference, whether the use result or be expressly declared. Hob. 31 [Counden v. Clerke], to the contrary, is denied in 2 P. Wms. 138, 139 [Harris v. Bishop of Lincoln]. Yet though there is a fine and uses declared to make a tenant to the præcipe, and a reco very against the tenant, to which the te- BURGESS v. WHEATE. 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 purchase of Chandler the mill, &c. and makes Chandler stipulate to convey these premisses to him and his heirs, or such person as he should direct. The equity of redemption was re[130] leased, 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 materná. 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. [Therefore the case is defective ly stated in this point.] 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 amoveat manus; but he loses the intermediate profits, which are accounted for in the Exchequer; 4 Co. 55. Baxter's Case, 75. Finch. 325.-It is the prerogative of the Crown not to interplead with the subject before they take possession.-But it is estate tail acquired by purchase from the ante, 22, n. (e): see also Goodright v. Wells, 2 Doug. 771; Doe v. Morgan, 7 T. R. 103. BURGESS v. WHEATE. 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 [131] 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, and felo 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 amoveas 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 commission, that there was no direction for seizing. This was an objection 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 Sandy's 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 lie; 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. authority, to justify the remedy now than one to found an objection on. for want of office is groundless; and a only proper remedy (g). This case is rather an pursued by the Crown, Therefore the objection bill or information is the Objection 2. This is not the proper Court for the Crown to institute a suit in; but it should have 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; (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 time 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, |