Page images


be uncertain, then, in an action of debt, as well as in other Exch. of Pleas, actions, there must be a writ of inquiry to reduce it to certainty. An apposite case is an action of debt for not Weald setting out tithe, where the jury must ascertain the single value, before the Court can give to the defendant the treble value of the tithes. But this is an exception to the general rule, that, in actions of debt, the plaintiff is entitled to consider the amount specified as the real debt, and that there is no reason for a writ of inquiry to inform the conscience of the Court. In Taylor v. Capper (a), where execution had been levied without any writ of inquiry executed in an action of debt, wherein the defendant had suffered judgment by default through a mistake in having pleaded non assumpsit, the Court decided that a writ of inquiry was not necessary. It is impossible for us to say, without any thing to shew that the declaration was so framed as to render a writ of inquiry essential, that this judgment, for the want of it, was irregular.

Vaughan, B.—There is nothing before the Court to shew, that in this action the debt was of such a nature as to require a writ of inquiry to ascertain its precise amount. That can be collected from inference only, which is not enough to bring this case within the exception to the rule, that the sum declared for is the true debt.

[merged small][merged small][merged small][ocr errors]

Exch. of Pleas,


and suffer his

[ocr errors]
[ocr errors]
[ocr errors]


[ocr errors]

and the lessors


Doe d. BARKER v. GOLDSMITH. W.B. bequeath. W ILLIAM Barker, by his will, dated in 1816, beed certain lease hold premises queathed to J. Roberts and J. Shirven certain premises in to trustees, on trust to permit

Duval's Lane, Islington, their executors, administrators,

and assigns, for the residue of a term, upon trust to perwife to receive the rents, &c. mit and suffer his wife Sarah Barker to have, take, and reduring her life. Afterwards the ceive the rents, &c., during her natural life, if she should surviving trustee and the

so long continue a widow; and from and after her death widow granted

or future marriage, on trust to sell the same, and divide a lease of the premises, the the produce between H. Barker and J. Barker, his sons; rent to be paid to the widow,

and appointed Roberts and Shirven executors of his will. to have a power

Shirren died before 29th September, 1823; on which day, ofre-entry upon by indenture of lease between J. Roberts, therein describof rent; the ed as surviving executor of William Barker, Sarah Barlease disclosed the title of the

ker, therein described as widow of the said William Barwidow, who, af: ker, and H Barker, devisee and residuary legatee named ter the death of “

in the last will of the said W. Barker, of the first part, premises: and J. Goldsmith, of the other part, reciting an assignHeld, that be- mon

ment in August, 1816, from Hartwell to the testator W. ing a stranger to the legal es Barker, of a lease of the above premises to Hartwell, tate, the power of re-entry dated November, 1807, for fifty-two years, and also the could not be re

dispositions in the will of W. Barker deceased, they the

said J. Roberts, Sarah Barker, and Henry Barker, delease operated as a lease by mised the said premises to the defendant, at a rent payathe trustee and a confirmation

able to S. Barker and H. Barker, and the survivor of them, by the widow.

and the executors of such survivor; and with a proviso for re-entry by J. Roberts, Sarah Barker, and Henry Barker, and the survivor of them, and the executor of the survi. vor, in case of non-payment of rent. After this lease, J. Roberts, the surviving executor, died, and the rent not be. ing paid, Sarah Barker brought an ejectment on the proviso upon her sole demise. The cause was tried before Gurney, B., at the Middlesex Sittings, and a verdict was found for the lessor of the plaintiff, with liberty for the

the trustee, entered on the

served to her, and that the

defendant to move to enter a nonsuit, it being contended Exch, of Pleas,

1832. that she was a stranger to the legal estate, and so that a right of re-entry could not be reserved to her. Doe d. DOE Barber v. Lawrence (a), Doe d. Barney v. Adams (6).

GOLDSMITH. Humfrey having obtained a rule accordingly.


Hoggins shewed cause. The statute of uses does not apply to this, which is leasehold property; and the trustees having joined in the lease with the lessor of the plaintiff, the rent being payable to her and her son, the assent of the trustees to the receipt of rents by the lessor of the plaintiff appears by the lease, and an assignment by them to her must be presumed. It was the intention of the testator, as evinced by the words “ on trust to permit and suffer (the lessor of the plaintiff) to receive the rents” during her life or widowhood, to vest in the widow an estate for life, defeasible by her second marriage: and so she has the legal estate, and a power of re-entry might be reserved to her. But the intention of the parties to the lease was, that the lessor of the plaintiff should receive the rents and profits, and should re-enter on their nonpayment. It thus operates as an assignment from the executor to the lessor of the plaintiff for her life, and as a lease from her to the defendant during her widowhood. In Burton v. Barclay (c), a deed was allowed to have the double operation of passing a fee, and also a chattel interest, in order to carry the intent of the parties into effect.

[Bayley, B.—The bequest of a leasehold to the trustee vests the legal estate in the trustee. Comyns, in his Digest, tit. Devise (I) says, A devise to B. to the use of another is good to the cestui que use;" and in tit. Uses (C), he affirms that a man may raise uses by will, for he may

(a) 4 Taunt. 23.
(6) 2 C. & J. 232.

(c) 5 Moore & P. 785; S. C. 7

Bing. 760.




Exch. of Pleas, devise lands to the use of another: but he there speaks of 1832.

" _ interests of immediate freehold.] Doe

Humfrey contrà.—The lease recites the interest of Mrs. Barker, and shews that it is equitable only. A power of re-entry cannot be reserved to a stranger to the legal estate: but, if her estate is sufficient to support such a power, so will that of her son Henry Barker, though it only arises on her death or second marriage. The defendant, by executing the lease, is not estopped from shewing, that, upon the face of the lease executed by Mrs. Barker to him, she shews herself to have no title. And the assent of the trustees, might apply with equal effect to the case of Doe d. Barber v. Lawrence.

BAYLEY, B.-If this had been a lease from these parties in their own names simply, without disclosing on the face of it the rights which they individually possessed, the demise by Sarah Barker, as surviving lessor, might have been sustained; because the lessee would, in that case, have been estopped from saying she was not his lessor. But the lease does disclose what the title of the lessor is, and describe Roberts as surviving executor of W. Barker. It discloses also the bequest to Sarah Barker as his widow, with reference to this property, and describes it as leasehold for the residue of a term. Roberts therefore was the surviving executor, in whom alone was vested the legal interest; and it was his lease only in law, though in terms the lease of Sarah Barker, for it operates only as a confirmation by her.

The devise is to the executors, on trust to permit the lessor of the plaintiff to receive the rents of this leasehold for her life or widowhood, and its effect at law was to vest the legal estate in Roberts and Shirven, and in the personal representative of the survivor of them, and to give Mrs. Barker an equitable right only during her life or




widowhood. It would be contrary to the trust given to the Exch. of Pleas,

1832. executors, that they, or either of them, should convey to u her the legal estate. An assignment is a species of conveyance which is not to be presumed, and is not within the contemplation of the parties. This lease operates at common law; for, the statute of uses applies to freeholds only and does not comprehend copyholds and leaseholds. Then, as, under the statute of uses, by a devise of freehold to A. for the use of B., B. takes the legal estate, and A. is the conduit pipe merely; so, at common law, if a leasehold is bequeathed to A. to the use of B. the legal interest is in A. and not in B. Therefore, in this case, it appears on the face of the lease in question that the legal estate was in J. Roberts, and in bim only, so that, on his death, it devolved to his personal representative, he having survived the other trustee.

There may be purposes for which a testator might wish the legal interest to remain in the trustees in order to control Sarah Barker's occupation, though he might intend her to have the beneficial interest; but here there is no evidence of his intention to give Sarah Barker a life estate. Then, if so, the lease operates as a lease by Roberts and a confirmation by the others. That a stranger to the legal interest, whose real title is disclosed on the lease cannot re-enter under a power to that effect, is clear in the case of Doe v. Lawrence. The ejectment will not lie; and the rule for a nonsuit must be made absolute.

BOLLAND, B., and Gurney, B., concurred.

Rule absolute.

« PreviousContinue »