Asher and Wife v Whitlock

JurisdictionEngland & Wales
Date1865
Year1865
CourtCourt of the Queen's Bench
[QUEEN'S BENCH DIVISION] ASHER AND WIFE v. WHITLOCK. 1865 Nov. 3. COCKBURN, C.J., MELLOR and LUSH, JJ.

Ejectment - Title by mere Possession - Devisable Interest in Land.

A person in possession of land without other title has a devisable interest; and the heir of his devisee can maintain ejectment against a person who has entered upon the land, and cannot shew title or possession in any one prior to the testator.

W. in 1842 inclosed some waste land; in 1850 he inclosed more land adjoining, and built a cottage; he occupied the whole till 1860, when he died, having devised it to his wife, so long as she remained unmarried, with remainder to his daughter in fee. On his death, the widow and daughter continued to reside on the property, and in 1861 the defendant married the widow, and came to reside with them. Early in 1863 the daughter died, aged eighteen years, and the mother died soon after. The defendant continued to occupy the property, and in 1865 the daughter's heir-at-law brought ejectment against him:—

Held, that the plaintiff was entitled to recover the whole property.

EJECTMENT for a cottage, garden, and premises, situate at Keysoe Row, in the parish of Keysoe, in the county of Bedford; the writ stated that the female plaintiff claimed possession as heir-at-law of Mary Ann Williamson, an infant deceased.

The defendant defended for the whole.

At the trial before Cockburn, C.J., at the last Bedfordshire Spring Assizes, the following facts appeared in evidence. About Michaelmas, in the year 1842, Thomas Williamson inclosed from the waste of a manor a piece of land by the side of the highway; and in 1850, he inclosed more land adjoining, and built a cottage; the whole being the land as described and claimed in the writ. He occupied the whole till his death in 1860. By his will he devised the whole property, describing it as “a cottage and garden, in Keysoe Row, in which I now dwell,” to his wife Lucy Williamson, for and during so much only of her natural life as she might remain his widow and unmarried; and from and after her decease, or second marriage, whichever event might first happen, to his only child Mary Ann Williamson, in fee. After the death of Thomas Williamson, his widow remained in possession with the daughter, and in April, 1861, married the defendant; and from that time they all three resided on the property till the death of the daughter, aged eighteen years, in February, 1863. On her death, the defendant and his wife, the widow of the testator, continued to reside on the premises; the widow died in May, 1863, and the defendant still continued to occupy.

The female plaintiff is the heir-at-law of the testator's daughter Mary Ann Williamson. The writ was issued 11th of April, 1865.

These facts being undisputed, the Chief Justice directed a verdict for the plaintiff for the whole of the property claimed; with leave to move to enter the verdict for the defendant, on the ground that the testator had no devisable interest in any part of the property.

A rule nisi was afterwards obtained to enter the verdict for the defendant, on the ground that no title in the plaintiffs was shewn to either portion of the land enclosed.

Markby (Nov. 2nd), shewed cause. The testator, at the time of his death, had acquired no title by lapse of time; and the point made and reserved at the trial was, that the testator being only a trespasser in possession, had no devisable interest; that his interest was at most that of a tenant at will only; and that the...

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79 cases
4 books & journal articles
  • Preliminary Sections
    • Nigeria
    • DSC Publications Online Nigerian Supreme Court Cases. 1985. Part I Preliminary Sections
    • 22 November 2022
    ...Ors (1974) 1 N.M.L.R. 414. ............................................ 459 Ashby v. White, (1703) Lord Raym 938. 408 Asher v. Whitlock (1865) LR 1 Q.B. 1 at 5. .......................................................... 323 Asiyanbi v. Adeniji (1967) 1 All N.L.R. 82. ..... 245 Associated Pr......
  • General Words
    • United Kingdom
    • Wildy Simmonds & Hill The Law of the Manor - 2nd Edition Part III. Rights
    • 29 August 2012
    ...were often to the income derived by way of rents, court payments and accidental services. 19 [1999] 1 WLR 894. 20 Asher v Whitlock (1865) LR 1 QB 1. 21 Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380. 22 This may have followed the Roman law that a colonus did not have possession. 17......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill The Law of the Manor - 2nd Edition Preliminary Sections
    • 29 August 2012
    ...85, 47 LJQB 163, 38 LT 510 4.3 Anon (Gray v Fortescue) (1572) 3 Dyer 326b, 73 ER 738 12.3 Anon YB Hil 21 Edward 4 22.7 Asher v Whitlock (1865) LR 1 QB 1, 35 LJQB 17, 13 LT 254 9.3 A-G v Chambers (1854) 4 De GM&G 206, [1843–60] All ER Rep 941, 23 LJ Ch 662, 18 Jur 779, 2 WR 636 24.4 A-G v Co......
  • MOGAJI AND ORS. V. CADBURY NIG LTD. & ORS
    • Nigeria
    • DSC Publications Online Nigerian Supreme Court Cases. 1985. Part II Cases reported in 1985 Part II
    • 22 November 2022
    ...(Part 1) 533. 34.Egwuh v. Duro Ogunkehin S.C.329/66 of 28/2/69. 35.Lyell v. Kennedy (1882) 20 Ch. D. 484. 20 36.Asher v. Whitlock (1865) L.R. 1 Q.B. 1 at 5. 37.Fadiora v. Gbadebo (1983) 2 S.C. 219, 248. 38.Dweye v. lyomahan (1983) 2 S.C. N.L.R. 135, 138. 39.Deborah v. Okonkwo (1982) 11 S.C.......

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