1827. บ. COLE. to another for term of life, or in tail, or in fee; it behoveth DoE d. WERE in such case, that the tenant for years attorn, or otherwise nothing shall pass to such grantee by such deed. And if in this case the tenant for years attorn to the grantee, then the freehold shall presently pass to the grantee by such attornment, without any livery of seisin; because if any livery of seisin should be, or were needful to be made, then the tenant for years should be at the time of the livery of seisin ousted of his possession, which shall be against reason." Lord Coke's comment upon that section, is an express authority in favour of the lessors of the plaintiff in this case. He says, "here Littleton having spoken of grants of seigniories and rent charges, and rents seck issuing out of land, here treateth of a grant of a reversion of land upon an estate for years; seeing this grant of the reversion must be by deed, and the agreement of the lessee for years requisite thereunto, the freehold and inheritance do pass thereby, as well as by livery of seisin, if it were in possession; and the grant of reversion by deed, with the attornment of the lessee, do countervail in law, a feoffment by livery, as to the passing of the freehold and inheritance (a)." The following section of Littleton, 568, and also, s. 572, are to the same effect, It will be contended on the other side, that it was not the intention of the grantor here, that the estate should pass as a reversion; but that is immaterial, for it is clear that he intended it to pass: and where the intent is apparent that the land shall pass at all events, it will pass by any mode within the scope of the deed, and though it cannot pass by the mode contemplated by the grantor, it will pass by any other mode by which it can pass. For this position there are many authorities: Roe v. Tranmer (b), Doe v. Salkeld (c), Shove v. Pincke (d), Haggerston v. Hanbury (e). (u) Co. Litt. 315 b. (b) Willes, 682. 2 Wilson, 75. (d) 5 T. R. 124. (e) 7 D. & R. 723. 5 B. & C. 101. 39 Coleridge, contrà.-Looking at the language of the 1827. V. COLE. deed, and the statement of facts in the case together, it is DoE d. WERE perfectly clear that the object of the parties was, that the immediate possession of the lands, and not the mere reversion of them, should pass by the deed. Prideaux, the grantor, was in possession of part of the premises at the date of the deed; Cole, the defendant, was also then in possession of part: those facts appear upon the case, but it does not appear what part Cole was in possession of, and the presumption of law is, that he and Prideaux had the undivided possession as joint tenants. Now, if the lessors of the plaintiff should recover, the sheriff could legally give them possession of that part of the premises only of which Cole had the possession at the date of the deed, and as that does not appear by the case, he would not know of what part to give them possession. [Littledale, J. The lessors of the plaintiff must act in that respect at their own peril; the Court have nothing to do with that. But the case finds that the defendant had possession of some part of the premises at the date of the deed, which must be taken to mean the separate possession; and the ejectment is brought for that part only. I do not see, therefore, that the difficulty suggested can arise.] The deed is bad for uncertainty; for it does not shew clearly what part of the premises it was intended to pass therefore it cannot be good to pass any part. [Bayley, J. It will pass such part as may by law pass under it.] The general principles laid down on the other side cannot be controverted, and if the Court think them applicable to the present case, the argument intended to be raised for the defendant cannot be supported. BAYLEY, J.-I consider this a very plain case in favour of the lessors of the plaintiff. All lands lie either in livery or in grant; and those only lie in livery of which the owner has the power of giving possession: but the very reverse of that position must be substantiated in order to 1827. entitle the defendant in this case to judgment. The case DoE d. WERE put by Lord Coke, in Co. Litt. 49 a (a), is decisive of the v. COLE. present. He says, "if a man make a lease, and by deed grant the reversion in fee, here the freehold, with attornment of the lessee by the deed doth pass, which is in lieu of the livery." The condition with respect to the attornment may be put out of consideration, because, since the statute of Ann (b), attornment has become unnecessary. Then, here, there is a lease for years, and a grant of the reversion; the reversion lies in grant, and the words of the deed are amply sufficient to pass the reversion. Upon the short ground that the grantor here had no power to give possession (c), and that the land, therefore, lay not in livery, but in grant, I am of opinion that the deed in this case was available to pass the reversion of the lands sought to be recovered, and, therefore, that the lessors of the plaintiff are entitled to judgment. HOLROYD, J., and LITTLEDALE, J., concurred. Judgment for the plaintiff (d). (a) 2 Tho. Co. Litt. 353. (d) Vide Earl of Clanrickard's case, Hob. Rep. 277. Goodtitle dem. Edwards v. Bailey, Cowp. 597. Solly v. Forbes, 4 J. B. Moore, 448. 2 B. & B. 38. S. C. Shep. Touch. 82 83 MORRANT and WIFE v. GOUGH and another. The obligor without pe payment to her life, of 201. a year, bequeathed to his wife 30l. a vised to defen- cate his son THIS was an action of debt, brought by William Morrant and Ann his wife, upon the bond of Thomas Sandy, of a bond, bearing date, 5th November, 1793, against Roger Thomas nalty, condiGough, as devisee of the said Thomas Sandy, and William tioned for the Sandy, as heir of Samuel Sandy, who was heir of Thomas A. M. during Sandy, whereby he became "bound unto the said plaintiff Ann, in the sum of 201., to be paid yearly during her natural life at the decease of the said Ann, to return to the heir of the said T. Sandy, to be paid to the plaintiff Ann, at the decease of the said T. Sandy, or his certain attorney, executors, administrators, or assigns: for the true payment whereof, the said T. Sandy did bind himself, his heirs, executors, and administrators, firmly by these presents, &c." The declaration then averred the death of the obligor, and the non-payment" of 507. for divers, to wit, two and a half years of the said yearly payment." The defendant W. Sandy, craved oyer of the bond, which was set out, and the condition of which appeared to be this: "that if the above-bounden T. Sandy, his heirs, executors, and administrators, at the decease of T. Sandy, shall and do well and truly pay, and cause to be paid, unto the above-named Ann Morrant, during her natural life (at the decease of the said Ann Morrant, to return to the heir of T. Sandy, then living), the full sum of 201. to be paid yearly, at the decease of the said T. Sandy, then, &c." The defendant William Sandy, then pleaded, first, non est factum antecessoris; secondly, riens per descent from T. Sandy the obligor, to S. Sandy; thirdly, riens per descent, from T. Sandy to S. Sandy, and from S. Sandy, to defendant W. Sandy; fourthly, an immoral consideration as between the obligor and obligee. until 21, and to account for profits at that time; provihis wife should be living when his son attained the devisee should retain ded that if full age, and hold in trust such of his estates as would secure to his wife the said 30l. a year." Testator's wife died during his lifetime, and testator afterleaving his son surviving, wards died under age. -Held that wards died who after The replication to the pleas of the heir, after suggesting the estate of the devisee ceased on the death of testator's son; and that the devisee was not liable to A. M., for any arrears of her annuity which had accrued due since his death, although the rents and profits exceeded the annuity. 1827. MORRANT and V. GOUGH and another. the death of the plaintiff, W. Morrant, took issue upon the plea of non est factum, alleged assets by descent, and denied the immoral consideration. The rejoinder of the heir took issue upon the last three replications. The defendant Gough pleaded (a), first, non est factum devisatoris; secondly, riens per devise; and thirdly, that the said T. Sandy, on, &c., at, &c., duly made and published his last will and testament in writing, whereby, amongst other things, he gave and bequeathed unto his wife Mary Sandy, the sum of 201. yearly, and every year, for and during her natural life, to be computed from his decease, and to be paid her by his executors thereinafter named, from such of his estate thereby devised to them in trust; and he thereby appointed his brother Charles Sandy, and the said R. T. Gough, his executors and trustees, and gave and devised unto the said C. Sandy, and R. T. Gough, all his freehold and leasehold messuages, whereof he the said T. Sandy was seised in fee, situate in the parishes of Titchfield and Fareham, and then in the occupation, &c.; and also all his bonds, notes, and securities for moneys, of whatsoever nature or kind, in trust for his son Thomas Sandy, and that they, the said C. Sandy and R. T. Gough, should receive the rents, profits, and interest thereof, and apply the same for the purpose of maintaining and educating his said son T. Sandy, until he should attain the age of 21 years. And the said T. Sandy, the testator, did thereby authorise, empower, and direct the said executors, and the survivor of them, and the executor and administrator of such survivor of them, from and after his decease, and until his said son should attain the age of 21 years, to manage and improve the estate and fortune of his said child, according to their discretion, and that they should pay unto, and account (a) Oyer was not prayed by defendant Gough, nor does it appear to have been necessary, as the bond and condition, when set out upon the oyer, granted to defendant Sandy, became part of the declaration. |