Adams v Tertenants of Savage
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 41
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Pas. 3 Ann. B. R. 2 Ld. Raym. 854, S. C. quod vide.
9. adams versus tee-tenants of savage. [Pas. 3 Ann. B. E. 2 Ld. Raym. 854, S. C. quod vide.] Mod. Cases 134, 199, 226. Administration in Dorset no title to a judgment in any of the Courts at Westminster. Post, 601, 699. Far. 15. Mod. Cases, &c. 245. S. C. Salk. 601, 679. 3 Salk. 321. Holt 179. Lill. Ent. 398, S. C. Ante, 15. Fide Skin. 237. Scire facias on a judgment in B. E. as administrator of J. S. and by his profert shews an administration granted by the Archdeacon of Dorset. The heir and ter-tenants pleaded riens per discent, t&c. and the plea being adjudged naught, the scire facias was abated by judgment quod nihil capiat per breve; which in this case the Court said was a bar to the action of the writ, but not to the action ; and the reason of their judgment was, because the plaintiff having made this administration his title, the Court could not intend any other, and the pleading over could not admit that to be a title which to the Court appeared to be no title.
English Reports Citation: 91 E.R. 577
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Hill. 1 Ann. B. R.
7. adams versus tertenants of savage. [Hill. 1 Ann. B. R.] S. C. 1 Salk. 40, & ante, 601. 2 Ld. Raym. 854. Lease and release by A. to trustees and their heirs to the use of A. for 99 years, remainder to the use of the trustees for 25 years, remainder to the heirs male of A.'s body : remainder to his right heirs, is void, for want of a freehold. 1 Chan. Rep. 239. ' 6 Mod. 134, 199, 226. 3 Salk. 321. Holt 179. Lilly Ent. 398. Mod. Cas. 134, 199, 226. Faresl. 15. In a stire facias on a judgment against tertenants, it was found by special verdict, K. B. xx.-19 578 USES AND TRUSTS 3 SA1KELD, 680. that one Savage being seised in fee, conveyed by lease and release to trustees and their heirs, to the use of himself for 99 years, remainder to the use of the trustees for twenty-five years, remainder to the heirs male of his own body, remainder to his own right heirs; the question was, whether Savage was tenant in tail, or only tenant for years? And the Court held the limitation to the heirs male of the body to be void, because there was no preceding estate of freehold limited to support it; and it shall not be implied contrary to the intent of the conveyance; and if it could be implied, it must be out of the estate given to the heirs of the body, which cannot be, because this is a new use ; whereas a resulting use is always from the old estate, and parcel of the old use; and here the estate takes effect by transmutation of possession out of the seisin of the trustees; and [680] not like Fenwick and Milford's case (a), where the owner covenanted to stand seised to the heirs of bis body. And yet per Powel, J. Even in that case, if there had been an express estate limited to the covenantor, it had been otherwise (6). (a) The case alluded to is Pibus v. Mitford, 1 Vent. 372. (b) Fide Pibus v. MUford, 1 Vent. 372 ; Penhay v. Harrdl, 2 Vern. 370; Rawley v. Holland, 5 Vin. 189. 2 Eq. Ab. 753; Tippin v. Oosin, Garth. 272. 4 Mod. 380; Fenwick v, Miifard, Moor 284; Else v. Osborne, I P. W. 387 ; Southcoti v. Stmoell, 1 Mod. 226. 2 Mod. 207; Wills v. Palmer, 5 Bur. 2615. 2 Bl. 687: The general conclusion from which, is thus stated by Mr. Fearne : "The inference afforded by the several cases seems to be, that when the use is not limited away during the whole life of the grantor, and there is an use limited which cannot commence till after bis decease, (as is the case of a limitation to the heirs of his body taken by itself,} whether that use be limited in the first instance, (as in Pibus v. Mitford,) cu be preceded by limitations for terms of years, (as in Penhay v. Harrdl,) or by uses of the freehold or inheritance that may determine in the grantor's life, (as in Wills v. Palmer,) the use results to the grantor for life, immediately in the first case, and in remainder expectant on the preceding uses in the other, where there is no express use limited to tha grantor himself, inconsistent with such an implica tion. Vide Butl. 2 Co. Lit. 216 a
English Reports Citation: 91 E.R. 848
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Mich. 3 Annæ, 2 Ld. Raym. 854, S. C.
6. adams verxtta tertenants of savage. [Mich. 3 Anna;, 2 Ld. Eaym. 854, S. C.] 1 Salk. 40, S. C. 2 Salk. 600, 601. 6 Mod. 199. 2 Vent. 104. Ow. 134. 6 Mod. 226. Cutub. 185. 7 Mod. 69. Where a scire facias against tertenants is general, 3 BALKBU). S. SHERIFF 849 it ia not proper for the defendant to plead in abatement, that there are other tertenants. 2 Cro. 506. Co. Ent. 624. Cro. Eliz. 740. Moor 524. 2 Saund. 8, 23. Palm. 241. 2 Eoll. Eep. 53. In this case (which see 1 Salk. 40) it was held by Holt, Ch. Juat. that where a scire facias brought against tertenants is general, as usually it is in C. B. it is not proper for the defendant to plead in abatement, that there are other tertenants not named, and so pray judgment of the writ, & quod breve predict, cassetur; but to pray judgment, if without them, respondtre debet; but where the scire facias is particular (i.e.) naming the particular tenants, in such case the defendant may pray judgment of the writ, and there being some doubt, whether the tertenants could plead other tertenants in another comity not named, &c. The Ch. Just, cited * Owen's Reports, that tenant for years might be a good tenant to plead in bar to a scire facias in a personal action, where damages are to be recovered ; but not to a scire facias in a real action. 7. At common law a scire facias would lie upon a judgment in a real action, because the party could have no new original; but it would...
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Adams and Tertenants of Savage
...11. adams and tertenants of savage. [Mich. 3 Ann. B. R. 2 Ld. Raym. 1253, S. C.] S. C. 1 Salk. 40, and post, 679. 6 Mod. 134, 199, 226. 3 Salk. 321. Holt 179. Lilly Ent. 398. Tertenants returned for several parts cannot join in a plea which goes to one part only. See before 598, pi. 1. 2 Sa......
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