Sidebilder
PDF
ePub

1806.

Doe dent.

COOK tersus DXNVERS.

the ninth section of the statute of frauds, 29 C. II.C.3. The 5th section of that statute, relates to wills which pass lands under the statute of'wills. Section the 7th, relates to express declarations of trust or confidence, and enacts thal 'declarations of trust or confidence of any lands shall be manifested and proved by some writing signed by the party who is by law enabled to declare sucht trust, or by his last will in writing; or else shall be void. The 8th section applies to trusts by impli. cation of law,which are excepted. And, by section the 9th, the assignment of any trust or confidence shall likewise be in writing, signed by the party, or by such will. Such will must be a will in writing signed by the party, or a nuncupative will under the statute, which does not fall within the same inconvenience, because that is confined to property of 30l. value."

Lord ELLEN BOROUGH, C. J. ' LAWRENCE, J. and LE BLANC, J. observed that the word such' was not in the 7th section. It did not, therefore, require a will signed and attested by three witnesses, but merely a will in writing; that by the 9th section the words

such will' could only refer to the last antecedent' will namely, a will in writing under the 7th section; but if the word such had been contained in the 7th section, the inference would follow, that it must be attested by three witnesses. By the terms of the surrender however it must be a will in writing. .

NOLAN. “ All the older cases expressly state that the will should not only be in writing, but signed by the party. The words of the report in ? Barnadiston, of the case of Tufnell v. Page, are that the will must be in writiog, then its being signed by the party will be sufficient;' So in Roe v. Ileyhoe,* Lord C. J.

* 2 Bluck. 1.1.14.

1806.

Doe dem.

Cook

versus DANVERS.

De Grey says, it was signed by the testator, this there fore is a sufficient will. It seems therefore to have been the general opinion of the judges, that it should be signed. As Carey v. Askew, is reported, in the notes to Peere Williams that case is against the necessity of signature, but as the statement stands in the text of the report, in Brown's Cha. Ca. it might have been signed.

LAWERNCE, J. “ You say that it was signed in that case ; you may easily ascertain the fact by searching the register books.”

Nolan, then cited Doe d. Tempest v. Dancer.* In which case LAWRENCE,J. observed that Lord Kenyon, said, he felt that there was much force in Mr. Scott's arguinent that a copyhold estate would not pass by a codicil not attested. There was no decision however in that case. Then, as to the question upon the statute of limitations, and whether the descent tolls the entry; John Dancers was admitted in fee and received the rents and profits; he died, and the defendant was admitted on his death, and has continued ever since in possession. If this were not the case of a will, it is clear that there was a descent cast and the entry thereby was tolled. Cn. Litt. 240, $. 392; and Matheson v. Trott.+ In one of the latter seports of the case, however, it is not stated that the descent is not tolled where there is a devise; but the case is put upon a different ground, and it is denied that there was a disseisin and that the heir was ever in possession, and that is the ground relied upon in Taylor v. Iorde, where it is said that the ancestot had been in possession but never was seised and there was no descent. But here as tlie party cannot claim by the devise, but must claim by the surrender, for otherwise the will must be duly attested, it operates

* AI. S. l'ide l'ost, + Owen, 141, 1 Leon. 209.

i Burr. 60.

Coor versies

as if there were no will, and the entry is tolled. Then 1806. is the plaintif burred by the statute of limitations, Doe de 21 Jac. I. c. 16. This suggests two points; first considering the estate as copyhold, and secondly, consider- DANVERS. ing it as freehold. The words of the statute are that * no persons shall make an entry into lands, but within 20 years after their right or title shall first descend or accrue to them ;' and it operates in two ways, first as a bar to the plaintiff if he does not enter within the time; and secondly as a title to the defendant, if he has been in possession for twenty years. First, as a copyhold: the admittance is the investiture of the tenant to the copyhold, and if a copyholder has a right or title to that admittance, the whole seisin is barred, if he does not claim to be admitted within twenty years. And that the statute of limitations applies to copyholds is clear from Bro. Abr. Limitations, pl. 2, which cites 6 E. VI., upon the old statute of limitations, and also Shaw v. Thompson,* and Roe d. Tarrant v. Hellier,t upon the new statule. The admittance is his right or title to the entry which he ought to make within the twenty years ; as such, his admittance ought to be within twenty

years.”

LAWRENCE, J. “Entry, in the case of an heir, will do without admittance to claim the title."

Nolan, “I confine the doctrine to a devisee, whose admittance will entitle him to all the effect of an entry so that he might have distrained for the rent without atlornment, before the statute which rendered attornment unnecessary Swinnerton v. Miller ;| for adınittance is the act in law which puts the estate in the party, as in the post ; Coke's Copyholder,ộ and in

.

Hob. 177.

* Moor, 410. + 3 Term. Rep. 162.

p. 87, s. 39.

Cook versus

1806. the case of a devisee nothing passes until admittance, Doe dem.

the surrender being only the manifesting of the gran

tor's intent,and till admittance the lord taking notice of DANVERS.

the grantor as his tenant, Roe v. Hilks.* . Here, the defendant is the heir at law in whom the right to the rents and profits vests, nothing passing to the devisee, till admittance. The heir is admitted on the 21st of June, 1782, and it is found that he received the rents and profits from the death of the testatrix; more than twenty-two years previous to the time of bringing this action of ejeciment. Here is then a complete adverse possession in the defendant. He has the title to the possession ; the lessor of the plaintiff has none. The defendant has the complete legal interest, which eighteen years ago he reduces into possession; he receives the rent of the tenant for more than twenty years, and

this receipt of the sent is the possession of the tenant .. to him. Although there is no case in law to that effect,

yet in equity, where the purchaser of a copyhold,before admittance, died, and devised it, and his wife was afterwards delivered of a posthumous daughter, and the devisee thinking the devise was void, suffered ber to be admitted, and after twenty years brought his bill ; it was said, that, had he come in time, he might have had a decree, but after twenty years, and paying rent so long, he is too late, Dury v. Beurdsham.f Secondly, if this is a customary freehold, the plaintiff is barred of his right of entry by not having entered within twenty years, notwithstanding the possession of the tenant might have been set up against him in ejectment. For there are several entries into land, for which there is no remedy by ejectment; it being necessary that in ejectment there should be an actual ouster of the poz.

* 2 IVilson, 16.

+ 2 Cha. Ca. 39. 3 Cha. Kep. 4, cited in

9 Juclerri, 75.

Dor den.

tersis

session as well as an entry. And there are many 1806. entries competent to the landlord, this being only Do a lease for years, for which not even trespass will Cook lie; as an entry to demand rent or feally ; which-lat- Datas ter still exists. He might have entered to obtain seisin, of the freehold, and not having entered to demand the seisin of the freehold within twenty years, he is barred."

LAWRENCE, J. “How do you mean to demand seisin of the freehold ? Is it to do that act upon the Jands which amounts to scisin ? Have you any case for that, to shew that the tenant could aut maintain trespass ?"

Nolan. " Taylor v. Horde, lays down that, as by the old law there might have been a tenant to the freehold, and a tenant in possession, the latter was merely, the covenanted bailiff of the tenant of the freehold; and at those times the tenant of the freehold could not by bis lease lave ousted himself of his right to enter to obtain seisin, because he would have bai red the lord of his feodal rights."

Lawrence, J. "He might have entered to view waste; but are these any of the entries spoken of in the statute; does not that mean an entry to get pos: session :" . ...

NOLAN. " I construe the statule that be should make entry to justify his title. Otherwise a lease for - 1000 years will preserve the entry, and this consequence will happen ; the lessor in such a case might not be in possession for sixty years; but a disseisee in a writ of right must count on an actual şeişin, which is a matter distinct from possession : then he, the Jessor, might recover upon an ejectment for that lo pyhich he could not refer the right, and the next day

NO. 3XXI. N. S. Kr

« ForrigeFortsett »