Ackland v Lutley
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1839 |
| Date | 06 February 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1446
IN THE COURT OF QUEEN'S BENCH
S. C. 1 P. & D. 636; 8 L. J. Q. B. 164. See Collier v. M'Bean, 1865, 34 Beav. 426; L. R. 1 Ch. 81. Applied, Isaacs v. Royal Insurance Company, 1870, L. R. 5 Ex. 300; Sidebotham v. Holland, [1895] 1 Q. B. 383.
ackland against lutley. Wednesday, February 6th, 1839. Devise to R. and W. in trust that they and their heirs shall set and let the premises, and out of the rents and profits pay a debt of the testator, and certain legacies; devise, from and after such payment, to J. B. in fee. Testator, after making his will, demised the premises for a terra, which did not expire till after his death, and after payment of the debt and legacies. Held, that the estate of the trustees determined when the debt and legacies were paid. A house was demised, habendum for twenty-one years from March 25th, 1809, paying rent on certain 9 AD. fcE.880. ACKLAND V. LUTLEY 1447 days, of which March 25th was one. The estate of which it formed part had been devised by the landlord to trustees to receive the rents and apply them to certain purposes. After the landlord's death, and before the trusts were completely executed, and during the tenancy, the reversion was sold. For a year after this sale, the purchaser received the rents, but, during the subsequent years, from Christmas 1817 to Lady-Day 1830, they were received by the trustees. The trusts were completely executed in 1821. On March 25th, 1830, the lessee came to the house (no one being therein), gave the key to the trustees, and departed. The trustees entered ; and the purchaser, who had been present at the above proceeding, and had come to take possession, entered also, but was put back by the trustees, and they remained on the premises. Held, that if the lessee's term had expired the reversioner's entry would have been good, notwithstanding the entry of the trustees. But that the term, under the above lease, did not expire till the end of March 25th, 1830. Held, also, that the acts of the lessee on that day did not necessarily import a surrender or a forfeiture. [S. C. 1 P. & D. 636 ; 8 L. J. Q. B. 164. See Collier v. M'Bean, 1865, 34 Beav. 426; L. R. 1 Ch. 81. Applied, Isaacs v. Royal Insurance Company, 1870, L. R. 5 Ex. 300; Sidebotham v. Holland, [1895] 1 Q. B. 383.] Trespasa. First count; for breaking and entering buildings and closes of plaintiff and expelling him, &c. Second count; for seizing and removing plaintiff's goods and chattels, and placing them on a common highway without his leave. Third count; for seizing and taking plaintiffs trees, pollards, &c., and converting the same, &c. Pleas. 1. Not guilty. Issue thereon. 2. To counts 1 and 3 ; that plaintiff was not possessed of the buildings, &c. at the time when, &c., nor were the trees, &c., the trees, &c., of plaintiff, in manner and form, &c.: conclusion to the country. Issue thereon. 3. To count 1 ; that the buildings and closes, at the time when, &c., were the buildings and closes, soil and freehold of William Braddick ; justification as Braddick's servant: verification. Replication ; that the buildings and closes, at the time when, &c., were not the buildings, &c., soil and freehold of W. B., in manner and form, &c. : conclusion to the country. Issue thereon. [880] 4. To count 2 ; that, before and at the first of the times when, &c., James Pring was lawfully possessed of a certain close adjoining the said common highway ; and, because the goods, &c., before and at the said time when, &c., were wrongfully in and upon the said close encumbering the same, &c. ; the plea then averred that defendant, as Pring's servant and by his command, at the time when, &c., took and seized the goods and removed and placed them on the said highway, being within a small and conTenient distance, and there left the same for plaintiff's use, doing no unnecessary damage, &c.: verification. Replication, de injuria. Issue thereon. 5. To count 2 ; a similar justification under William Braddick. Replication, de injuria. Issue thereon. 6. To count 2 ; a similar justification under William Toler. Replication, de injuria. Issue thereon. The cause coming on for trial at the Taunton Spring Assizes, 1836, a verdict was taken for the plaintiff, subject to the award of a barrister, to whom the cause was referred, with liberty to order a verdict for either party, or a nonsuit, and to raise any question of law on such award. The arbitrator awarded as follows. "I do specially find and state the following facts. One James Troake, being seised in fee of the dwelling-house," &c., "and of the lands," &c., " mentioned in the declaration, by his will," &c., "devised the same as follows:-To Robert Blackmore and William Braddick upon the trusts, and to and for the intents and purposes, thereinafter mentioned and declared concerning the same, that is to say: upon trust that they the said R. B. and W. B. and their heirs do and shall set and let the said premises, and out of the rents and profits thereof do and shall in the first place pay off and discharge the sum of 1211. 10s. 6d. which I do owe to [881] Mary Dyer my servant, and in the next place do and shall pay unto Mary, Hannah, Richard, James, and Joan, sons and daughters of my late nephew Richard Blackraore, deceased, 1448 ACKLAND V. LUTLEY 9 AD. ft E. 882. the sum of 101. apiece of like lawful money, to whom I give the same, to be paid unto each of them by my said trustees as soon as the clear rents and profits of the said premises will admit of; the eldest of them to be paid first, and so on in rotation one after the other. And, from and after the debt due to Mary Dyer, and the five legacies to the aforesaid children of my said nephew Richard Blackmore, are paid off and discharged, I give, devise and bequeath the same unto John Blackmore, son of tbe said Richard Blackmore deceased, to hold the same premises, with the rights, members, and appurtenances thereof, unto the said John Blackmore, his heirs and assigns for ever. "The testator, James Troake, died in 1811. Previously to his death he granted a lease of tbe said premises to one Thomas Pring, for...
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