Casamajor v Strode
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1833 |
| Date | 01 January 1833 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 1114
HIGH COURT OF CHANCERY
S. C. Coop. t. Brougham, 418; 5 Sim., 87.
[706] casamajor v. strode. March 20, 21, 26, April 15, July 2, 1833 ; Feb. 13, 21, 22, March 4, 1834. [S. C. Coop. t. Brougham, 418 ; 5 Sim., 87.] The provision in the General Inclosure Act, that the commissioners' oath, and the-appointment of any new commissioner, shall be annexed to and enrolled with the award is merely directory. An Inclosure Act, reciting that S. was entitled, as lord of a manor, to the soil and royalties, and, as lay rector, to all tithes within the manor, and that he claimed right of common on the waste in respect of the soil and royalties, directed certain allotments to be made to him in compensation for his right to the soil of the waste, and SMY. ttK.707. CASAMAJOR V. STRODE 1115 to the tithes, and that the residue of the waste should be divided among S. and the other persons having right of common upon such waste, in proportion to their respective claims; and it reserved to the lord the seigniory and royalties. The Act made no mention of any right of warren existing in the lord ; but there was some evidence that S. had used part of the waste as a rabbit-warren. The award gave an allotment to S. for his right of warren, arid also three other allotments, which purported to be made for his right to the soil, his right to the tithes, and his right of common and other rights and interests in the waste, respectively; which allotments were declared to be a full compensation for all his right and interest in the lands directed to be inclosed. Held, that S.'s title to the warren allotment was not. such as a purchaser could be compelled to take. Under the decree in this cause, certain real estates situate at Northaw, formerly the property of William Strode, deceased, were put up to sale in lots in the month of October 1811, when W. W. Drake became the purchaser of Lots 25 and 30. Ani abstract of title was delivered soon afterwards ; but various difficulties were raised with respect to the title, and after a great deal of negotiation between the solicitors of the parties, the usual reference was made on the 16th of November 1815, directing an inquiry upon that subject. On behalf of the purchaser, objections were carried in to the Master's office, some of which were removed or abandoned and others persisted in ; eventually the Master overruled them all, and, on the 23rd of June 1831, reported that a goad, title could be made to both lots. The purchaser took a general exception to the report, grounded on the following, among other, objections :- " First,-Because it is alleged that the title to part of the said premises is derived under an award made by [707] the commissioners under an Act of Parliament passed in 43 G. 3., for dividing, alloting, and inclosing, and otherwise improving the waste land within the parish of Northaw; and it has not been shewn that the persons by whom such award was made had qualified themselves to carry the said Act of Parliament into execution; nor that Mr. John Taylor, one of such persons, had been duly appointed a commissioner for the purposes of the said Act, or had power to make such award. "Secondly,-Because it alleged that the premises in question are part of the allotments made by the said award to Mr. Strode, in respect of his right to tithes and to the warren. "Thirdly,--Because no title has been shewn to the warren in respect of which such allotment was made, and that no evidence has been given to prove that the warren was tithe free." the vice-chancellor, before whom the exception was originally argued, overruled the several grounds taken in support of it. The purchaser thereupon appealed. The argument before His Honour, as well as in the Court above, turned entirely on the construction and effect to be given to the General Inclosure Act and the Northaw Inclosure Act, with reference to the award made by the commissioners acting under the latter; and as these Acts and the award are fully stated by Mr. Simons, it will be sufficient to refer to the statement of them contained in his report of the case (5 Sim., 87; the Inclosure Act and the award will be found in pp. 88-93). [7081 Sir E. Sugden, Mr. Teed, and Mr. Jemmett, in support of the exception. Mr. Pepys, Mr. Knight, Mr. Hodgson, and Mr. Hovenden, contrh. Apiil 15. the lord chancellor said that, with respect to the question arising upon the non-production of the appointment and oath duly subscribed and annexed to the award, he felt no hesitation in affirming His Honour's judgment. Upon the other points, hcrwever, which were raised by the exception, his Lordship stated that he entertained considerable doubt; and that he was, therefore, disposed to give the parties an opportunity of having them further argued and investigated. July 2. In pursuance of a previous arrangement, made at the suggestion of the Lord Chaneeflor, the objections to the title to Lots 25 and 30, grounded upon the second and third reasons stated in the exception, were again brought on for argument before his Lordship, assisted by Lord Chief Justice Tindal and Mr. Justice Bosanquet. 1116 OASAMAJOR V. STRODE 2 MY. & K. 709. Sir Edward Sugden, in support of the exception. It is material to bear in mind that this is a case between a buyer and a seller, and that the rule in equity is invariable and universal never to force a purchaser to take & doubtful title. The same rule has been recognised even in Courts of law, where, upon an action against a purchaser for breach of contract, the Judges have held the doubtfulness of the title to be a good defence, without absolutely deciding either way on [709] the question of its validity. The Court has now, therefore, to consider, not merely whether the title must be certainly and necessarily bad, but whether having regard to the opinion which other Judges may possibly form with respect to it hereafter, it is not involved in so much doubt that a purchaser should not be compelled to accept it. It is also to be observed that in awards under Inclosure Acts, the allotments are always made in respect of other and previously existing rights. Whatever therefore may have been the charges, incumbrances or limitations affecting Mr. Strode'* title to the manor, the allotment to him as lord will be subject to the same; and so in like manner in the case of the other allotments ; and when the vendor who has sold an allotment has to make out his title to it, he must make out his title to the land or other interest, in respect of which the allotment was awarded. Another observation is that, if commissioners under an Inclosure Act do not strictly pursue the directions of the Act, their award is utterly void at law, whatever may be the consequences, even if the inclosed common should be thereby again thrown open. It is possible indeed that a person taking lands under such defective award may be able to hold hia allotment against all the world. In trespass he may not be bound to shew a title to that in respect of which he received the allotment; and still he may be unable to carry that allotment to market, because he cannot shew in respect of what interest it was made, or to what uses it is subject. Such a title is merely possessory, and it is not one with respect to which a vendor has a right to say that a purchaser shall bo compelled to accept it. Many cases have established the proposition that unless Inclosure Acts are literally followed according to their fair and reasonable construction, the awards made [710] under them are absolutely void (Cooper v. [falker, 4 B. & Cress., 36 ; and see (Jooiicr v. Thorpe, 1 Swans., 92 ; The King v. The Inhabitants of IPashbrook, 4 B. & Cress., 732). It is not enough that the spirit of the Act has been pursued. There would be no safety if commissioners were at liberty to exercise a discretion, and to proceed according to what they might suppose was the equity or general purview of the Act (mngjieldv. Tharp, 10"B. & Cress., 785). To apply these principles to the present case the purchaser contends, first, that with respect to Lot 25, which is admitted to consist in part of land allotted in respect of what is called Mr. Strode's " right, title, and interest in the said warren," no title whatever has been shewn to any warren or right of warren ; and, secondly, that if a title had been shewn, still that the commissioners possessed no authority under the Act to make any award in respect of it, and that as they have exceeded their power in that particular, their award is consequently void. What does this award on the face of it purport to do ? First, it gives to Mr. Strode and his heirs an allotment containing 102 acres of freehold land, described as surrounding the warrener's house and garden, and which is declared to be, in the judgment of the commissioners, a full compensation for his " right, title, and interest in the said warren," although a warren is nowhere previously mentioned, and the commissioners could have had no information before them as to any right of warren belonging to Mr. Strode. Then it proceeds to make a second allotment to him of another piece of land containing eighty-one acres, as a full compensation for all his right and interest in the [711] soil as lord of the manor; a third allotment in compensation for all his right to the tithes of the common to be inclosed; and a fourth allotment in respect of all his rights of common and other rights and interests ; and it concludes by stating that these allotments were, in the judgment of the commissioners, a full compensation for all his right and interest in all the lands directed to be inclosed. In respect, then, of what interest is it that this warren allotment was awarded to Mr. Strode 1 It could not be in respect of his interest as lord in the soil of the common, for another and distinct allotment is expressly made to him on that account. Neither, and for the same reason, could it be in...
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