1819.

DOE

against HILDER.

Two

the son and next of kin of William Denman, who died intestate in 1810, took out letters of administration, and by a deed dated 19th March, 1819, by the direction of the devisees of Mrs. Sarah Newman, who had died in 1816, assigned the term in the usual and regular way to a trustee for them, and to attend the inheritance. The deed creating the term in 1762, was produced by a purchaser of the larger part in value of the estate comprised in it. The deeds of 1779 and 1819, were produced by the defendant. questions were made. First, that the defendant, under these circumstances, was entitled to a notice to quit. Secondly, that the out-standing term put an end to the plaintiff's case, the legal estate being thereby out of him. The learned judge was of opinion against the defendant, on the first point; and as to the second, he directed the Jury to presume a surrender of the term. The Jury having accordingly found a verdict for the plaintiff, Gurney, in last Easter term, obtained a rule nisi, for setting aside the verdict, against which rule cause was new shewn by

Marryatt and Abraham for the lessors of the plaintiff. They contended, first, that the Jury were warranted in presuming a surrender, where the purposes of justice required it. Here the term had been taken no notice of from 1779 till 1819, just previously to this trial. And yet there were many intermediate conveyances, and one marriage settlement executed. In support of this they cited Doe v. Pegge (a), Lade v. Holford (b), Doe v. Staple (c), Doe v. Scott (d), and

(a) 1 T. R. 760.
(c) 2 T. R. 684.

(b) Bull. N. P. 110.
(d) 11 East, 478.

Doe

Doe v. Wright. (a) But at all events, this case falls within 29 Car. 2. c. 3. s. 10., by which the sheriff is required to deliver execution of all such lands, &c. "as any other persons be in any manner seised or possessed in trust for him, against whom execution is sued, like as the sheriff could, if the party had been seised of such lands and of such estates as they be seised of in trust for him, at the time of the execution sued." Now a trust to attend the inheritance, is a trust for the owner of it, and the owner of it was Richard Newman, against whom the execution was sued out. And it is observable, that the words are, "seised or possessed." So that they appear to have been intended to cover all As to the notice to quit, none was necessary in this case, because the judgment bound the lands from the time of its being signed; and so the lessor of the plaintiff comes in by a title, paramount to the landlord of the defendant. They were then stopped as to this point by the Court.

cases.

Gurney, Comyn, and Sugden, contrà. A notice to quit in this case was necessary; because, until the execution of the writ of elegit, it was uncertain which moiety of the estate would be extended, and the defendant came in as tenant before the writ of elegit was sued out. [Abbott C.J. How can a notice to quit be necessary, when the judgment, which was signed in 1808, bound the land from that period; and if it would bind a purchaser in fee, why should it not equally bind a tenant for a term of years? Holroyd J. The sheriff is directed to give possession of the specific land occu

(a) Ante, p. 710.

1819.

DOE

against HILDER

1819.

Dok against HILDER.

pied by the defendant: the freehold being extended under the writ, it avoids the lease in toto.] As to the second point, this differs from any of the cases cited for there the presumption of the surrender of the term was made in favour of the owner of the inheritance, but here it is to be made against his interest. Any thing which clogs the free alienation of property is detrimental, and therefore the Court ought as far as possible to protect the interests of purchasers. It was for this purpose that these terms were introduced, viz. to protect the estate in the hands of a purchaser from the effect of mesne incumbrances, Evans v. Bicknell. (a) It is said that no notice is taken of this term in the marrriage settlement of 1814. But it is not usual to do so. A term is not usually assigned either on a devolution of the estate from ancestor to heir, or on a marriage settlement; when once assigned to attend the inheritance, it is considered as always assigned for that purpose. The case of dower has always been considered as the excepted case, and was so stated by Lord Eldon in Maundrell v. Maundrell. (b) As to the possession, the question is whether that has been inconsistent with the existence of the term. Keene v. Deardon. (c) Possession is indeed evidence of title, but not whether that be a legal or an equitable title. And the owner of the inheritance being considered as tenant at will to his trustees, his possession is the possession of the trustees. Freeman v. Barnes (d), Dighton v. Greenvil. (e) Here there has been nothing inconsistent with the subsist

(a) 6 Ves. 184.

(d) 1 Ventr. 82.

(b) 10 Ves. J. 246. 1 Sid. 460. S. C.

(c) 8 East. 248. (e) 2 Ventr. 329.

ence

c. 3. s. 10.

ence of the term. And if the mere lapse of time be
sufficient, it will become a difficult question hereafter
to ascertain how often a term must be assigned in order
to rebut the presumption of its being surrendered.
This doctrine will in practice be found extremely in.
convenient, and may prejudice many titles which are
at present considered as good. Here too the circum-
stances relied on in Doe v. Wright (a) of the deeds
being in the possession of the owner of the inheritance
do not occur. They also cited upon this point Doe
v. Sybourn (b), Goodtitle v. Morgan (c), and Willough-
by v. Willoughby. (d) Then supposing the term not
to be surrendered, it is clearly not within the 29 Car. 2.
First, every attendant term is at law a
chattel real, a term in gross. This was laid down by
Lord Hardwicke in Willoughby v. Willoughby above
cited. It cannot therefore be taken in execution for
the debt of the cestui que trust.
Shirley v. Watts (ƒ), Burdon v.
Scholey (h), Metcalf v. Scholey. (i) In a case like this,
where there is a term of years in A. with a remainder
in fee in the debtor, the proper course for the judg
ment creditor to pursue is pointed out 2 Rolle Abr. 472,
viz. to extend the remainder, which gives him a right
to the rent reserved. These 'points arise generally in
Courts of Equity in cases of conflicting incumbrancers.
Now a Court of Law has not proper officers or powers
to determine such questions. The statute therefore
could not have intended to put trust estates and legal
estates on the same foundation, but only to embrace

Lyster v. Dolland (e),
Kennedy (g), Scott v.

(c) 1 T. R. 755.
(f) 3 Aik. 200.
2 New Rep. 461.

the

1819.

DOE

against HILDER.

1819.

DOE against HILDER.

the cases of estates in fee-simple, held in trust for the debtor in fee-simple. But there is another objection. Here the trustee was not trustee for Richard Newman, but for Sarah Newman, at the time when the writ of elegit was sued out, and so the case is not within the tenth section. On this point they cited Ex parte Knott (a), and Wilkes v. Bodington. (b)

Cur, adv. vult.

ABBOTT C. J. now delivered the opinion of the Court. This was an action of ejectment tried before my brother Park at the last assizes for the county of Sussex. The title of the lessor of the plaintiff was upon a judgment recovered in the year 1808, against Richard Newman for 8000l. and a writ of elegit and inquisition thereupon in the year 1818, finding Richard Newman seised in fee of the premises in question. It was further proved that the defendant occupied the land as a tenant, and had declared that he considered it to belong to Richard Newman, and had delivered to him a notice of the judgment received in June 1818 from the lessor of the plaintiff. On the part of the defendant, it was proved that on the 23d June, 1762, Francis Hare Naylor had conveyed the premises in question, inter alia, to Thomas Carter, for a term of 1000 years, by way of mortgage for securing the sum of 6000l. That in the year 1779, the mortgage was paid off, and deeds were then executed, whereby, in effect, the term was assigned to William Denman in trust for John Newman, a purchaser of the premises, and to attend the inheritance. That in the month of October, 1814, the said Richard Newwan, to whom

(a) 11 Ves. 617.

(b) 2 Vern. 599.

the