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1806.

· Doe dem.

Cook
Versus
NVERS.

the person ejected might on a writ of right, cuvat on
his seisin and recover the land. That srisin is distinct
from possession is clear from Taylor v. Iorde, which
states that a inere entry does not operate as a disseisin
to make a good tenant of the freehold.
· LAWRENCE, J. “That only means that trespass
is not disseisin.”
· Nolan. “In Co. Litt. 249, cases are put of disei.
sin of the freehold which shall be no ouster of the term-
or, Litt. 411, a; so if I let unto a man certain lands
for the term of twenty years, and another disseiseth
me, and oust the termor and die seised, and the lands
descend to his heir, I may not enter; and yet the
Jessee for years may well'enter, because that by bis
entry he doth not oust the heir, who is in by descent, of
the freehold which is descended unto him; but only
claimeth to have the lands for term of years, which
is no expulsion from the freehold of the heir, who is in
by descent.' Which' sufficiently shews, that there
may be a claim of the freehold, notwithstanding the
term.”. .

Lord ELLENBOROUGH, C. J. “ There is no disseisin' unless you claiin to be seised as tenant to the lord in the place of the person who is disseised.".

NOLAN. « Seisin is said in Taylor v. Horne,* to be a technical term to denote the completion of that investiture, by which the tenant was admitted to the tenure, and without which no freehold could pass." And it is laid down that recovery in ejeciment is no disseisin.+ So'if'tlie lord 'enter for the purpose of being seised, he does not disturb the possession of his tenant further than is consistent with the nature of the term.

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1806.

Due deu.

соок

versus DANY RY.

Foraierly it would operate as an ouster of the lessce; but now bewill be entitled to possession under his lease.”

Lord ELLEN BUROUGH, C. J. " Disseisin is a personal tres:)ass, a torlious ouster of seisin; it is therefore a tie pass on the person entitled to the freelold estate, Can you shew, that the lessor of the plaintif could have entered without being a trespasser on the termor, who has a title to hold under the ancestor; for the law does not require a man to do that wbichi would make him a trespas ser.”

Nolan. “ The old law might require that lie should ; for he would be a wrong doer in not entering to give the lord investiture of the feudal renure. In the time of Charles Il. before the feodal tenures were abolished, a termor was considered merely as a corenanted bailiff. For this purpose he must be so considered still. And to this day, in copyholds there is a symbolical delivery of the lands by the verge, and every line a man is so invested, he is not prevented by in long lease from taking the investiture of the tenure ; so, in the case of an incumbent of church lands which are leased for a long term in pursuance of the enabling statutes; when Uic incumbent dies, the investiture of the freehold, by the investiture of the parson in the church, is effected, not withstanding the lease.”

Lord ELLENBOROUCH, C.J. "'The investiture of the incumbent is by giving bin the key and handle of the church-door, which gives the whole parsonage. You must shew that the lessor of the plaintiff is obliged to distrail, or lo re-enter for non-payınent of rent" · Nolay. “It inust be admitted that this argument is directly against the case of Orrell v, Mudelor; but I must contend, that he must enter or receive the

Cook Le $u$

1806. rents and profits. Then he might be put to bring a wril of Doe deiu. entry or of right of such a kind, in which the judgment

is only quod oblinet seisinam suam, and which will not Davids affect the possession.” He then cited several in which

the party did not claim title to the possession.“ If any other construction is given to the statute than that which compels the freeholder to recover his seisin within twenty years, notwithstanding an outstanding term, a party will be absolutely deprived of his writ of right, by such a term being granted for seventy years only. For, if this is a bar to recovering seisin by writ of entry during the time of the lease, the demandant cannot' say that he was seised during that time."

LE BLANC. " That is, supposing the freeholder not to be seised by the possession of his ancestor's lessee, or by the receipt of the rents and profits.”

Nolan. “ Since the statute of attornments, the receipt of the rents and profits will be seisin ; but where there is no receipt of the rents and profits, the tenant cannot demand upon a seisin in himself, if this rule is to apply that the entry is to be suspended during the term. And in most cases of a writ of right the demandant avers a seisin by taking the esplees. If it be necessary to make an entry for the purpose of maintaining his right to the land, the lessor of the plaintiff might justify upon that ground, in an action of trespass. The taking of the rents and profits is an adverse possession, and has been so held in all the cases which have been decided upon the question of whether there has been an adverse possession between two joint-tenants or two tenants in common; Doe d. Fisher v. *Taylor."*

LAwes, in reply. “ The doctrine of a descent tol.

* Corper, 217.

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Jing the entry does not apply either to the case of a 1806. · copyhold or to that of a will where the party claims Di

under a devise, because there he has no remedy but by Coor entry; and for the same reason which applies to copy- DANVERS. holds, there can be no descent tolled of customary freeholds, because the inlerest of the lord is concerned.”

The SOLICITOR GENERAL upon the second argument, for the plaintiff, after noticing the objections taken by Nolan as above ;“Whether this be customary freehold or copyhold land is very little material to this question. Blackstone, in his treatise upon the subject, considers that the freehold is in the lord, and that they are only privileged copyholds, and of the same opinion is Bracton, lib. 2, c. 8, s. 2, who says, Non habet potestatem transferendi, cum liberum tenementum non habet, sed dominus ; and in the case of Stephenson v. Hill,* which was a case of customary tenement held secundum consuetudinem manerii, the court held that the freehold was in the lord, and that the tenant could not prescribe as a freeholder; and Lord Mansfield says, • What signifies the custom ; clearly the freehold is in the lord, and it is even stronger than the case of copyholds. Here, if any proof was necessary, the lease itself was made with a license from the lord, who could only be required to give his licence in respect of the freehold being in him. Then, as this is property which passes by surrender and will, it is clearly not within the statute of frauds, so as to require attestation by threc witnesses."

Lord ELLENBOROUGH, C. J. observed upon the point, whether it was a customary freehold or a copyhold, that it might be immaterial, for it might be

3 Burt. 1273.

1806 Dor dem.

Cook

tersus DANSERS

like a copyhold for this purpose of passiog by the surrender. ,

The SOLICITOR GENERAL. “It is said that, although this will is in writing, it must be signed by the party, because it is a declaration of trust; bul a declaration of trust is where the legal estate is in the trustee, and the equitable estate is in him who creates or declares the trust, but this will passes, not merely the trust or equitable estate, but the legal interest."

Lawrence, J. « In Tuffnell v. Page, in Barnardiston's report, Lord Hardæicke says, “So far indeed is necessary that it should be in writing; but if it is in writing and signed by the party, that is sufficient."

The SOLICITOR-GENERAL.. “ That is a peculiar mode of expression, which does not plainly intimate that it should necessarily be signed by the party."

LAWRENCE, J. " Can you conceive that the statute meant to say, that if a man takes under a declaration of a trust, he must have a signature of the party; but, if he takes under a will with trusts, he need not. la Doe d. Dancer v. Tempest, the question was, whether copyholds, purchased after the making of a will, passed by a codicil republishing the wall which was not signed by the party. It was apparently held that it would not; although Lord Kenyon, C.J. recommended the parties to compromise. The case occurred in 1796, Mr. Scott was on the one side, and the Solicitor General (then Mr. Gibbs) for the other. Lord Kenyon's note upon the case is, that the argument on the 7th section of the statute of frauds is strong on the parol acknowledgment of a prior declaration in writing, that the object of the statute was to obviate the mischie's arising froin the evidence of loose conversation.* In the Attorney General v. dudrews,+ Lord Tlardæicke

. * Mr. Tarrant was mentioned as the attorney in the case, from whom possibly some information might be acquird is tu the papers.

t i l'esryj. 2.5.

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