Charles Faussett, - Appellant; Michael Carpenter, Lessee of Charles Jones, lately deceased, and Elinor, his then Wife, now his Widow; Anna Maria Battersby, Widow; Elizabeth Palmer, Thomas Palmer, and William Palmer, Mungo Noble Henry Waller, Clerk; Augustus Beaufort, Clerk, and Mary his Wife; George Brabazon, Clerk, and Leonora his Wife; Robert Mayne, Esq., and Leonora his Wife; and Elizabeth Waller, Spinster-Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1831 |
| Date | 01 January 1831 |
| Court | Exchequer |
English Reports Citation: 5 E.R. 241
COURT OF EXCHEQUER.
Mews' Dig. v. 351, 1472; ix. 168, 176. S. C. 2 Dow & 01. 232. On point as to construction of deed, discussed and disapproved of in Drew v. Norbury (Earl of), 1846, 3 Jo. & Lat. 284; 9 Ir. Eq. Rep. 171, 524; and see Carter v. Carter, 1857, 3 Kay & J. 634, 635; Sidebotham v. Knott, 1872, 26 L. T. 703; and In re Champion, [1893] 1 Ch. 115. On point as to adverse possession, see Nepean v. Doe d. Knight, 1837, 2 M. & W. 894; and the Real Property Limitation Acts, 1833 (3 & 4 Will. iv. c. 27), and 1874 (37 & 38 Vict. c. 57)
[75] IRELAND. COURT OF EXCHEQUER. charles faussett,-Appellant; michael carpenter, Lessee of charles jones, lately deceased, and elinor, his then Wife, now his Widow; anna maria battersby, Widow; elizabeth palmer, thomas palmer, and william palmer, mungo noble henry waller, Clerk; augustus beaufort, Clerk, and mary his Wife; george brabazon, Clerk, and leonora his Wife; egbert mayne, Esq., .and leonora his Wife; and elizabeth waller, Spinster-Respondents [1831]. [Mews' Dig. v. 351, 1472 ; ix. 168, 176. S.C. 2 Dow & 01. 232. On point as to construction of deed, discussed and disapproved of in Drew v. Norbury (Earl of), 1846, 3 Jo. & Lat. 284; 9 Ir. Eq. Rep. 171, 524; and see Carter v. Carter, 1857, 3 Kay & J.-634, 635; Sidebotham v. Knott, 1872, 26 L. T. 703; and In re Champion, [1893] 1 Ch. 115. On point as to adverse possession, see Nepean v. Doe d. Knight, 1837, 2 M. & W. 894; and the Real Property Limitation Acts, 1833 (3 & 4 Will. iv. c. 27), and 1874 (37 & 38 Viet. c. 57)]. A. B. and C. being seised of lands as coparceners, by indenture made upon the marriage of A. in 1771, her share was conveyed to W. and P. in trust for the husband and wife and their issue, according to the usual course of settlement. There was issue of the marriage, who lived to attain vested interests in the lands. C. married P., who survived W. his co-trustee. In 1793 a fine was levied by A. and her second husband of her share of the lands, but the trustees were not parties to the fine. A similar fine was levied by B. and her husband. By a deed in 1794, A. and B., with their respective husbands-, and P. (his wife C. being dead), conveyed the lands to F., a purchaser in fee. The consideration money was stated to be, and was paid, to A. and B. and their respective husbands and P. in three equal parts. The covenants by the vendors for title and quiet enjoyment [76] were by the respective husbands of A. and B. and their wives and their heirs respectively, and by P. for himself, his heirs, etc., and the heirs, etc. of C., his deceased wife. There was also a covenant that the fines levied by A. and B., and their husbands, should enure to F. his heirs and assigns. After the death of A. and P., an ejectment being brought by the issue claiming under the settlement of 1771, and the heirs of P., as surviving trustee, upon exceptions to the Judge's direction at the trial, and a writ of error against a judgment overruling the exceptions, the following points were determined, 1. that the operation of the deed of 1794 was to convey the life estate of which P. was seised in right of his wife, and not the legal estate in fee of which he was seised as trustee for A. and her issue; 2. that the 241 V BLIGH N. S. FAUSSETT V. CARPENTER [1831] enjoyment of F. under the deed during the life of A. was not an adverse possession; arid, 3. that the statute of limitations did not begin to run against the issue of A. until after her death. Held, also, that an objection to the verdict, as including the entire interest in the lands instead of one third, not being a ground of exception, could not be entertained upon the writ of error ; and, semble, that this mistake might be rectified by application to the Court below. This was a writ of error on a judgment of the Court of Exchequer Chamber, in Ireland, affirming the judgment of the Court of King's Bench, in a certain action of ejectment, brought against the Appellant in the name of Michael Carpenter, as feigned lessee of the parties above named as Respondents. The ejectment was brought to recover the possession of lands in the county of Fermanagh, in Ireland, called the Callowhill estate. The demises in ejectment were laid on the 2d of May, 1814, and the entry and ouster by the Defendant on the two following days. The lands had been before and were at the time of the execution of the after mentioned deed, [77] the estate in fee of Catherine Smyth, Anna Maria Smyth, and Elinor Smyth, as co-heiresses-at-law of Edward Smyth, and they being so entitled thereto, and in possession and enjoyment thereof, an indenture of marriage settlement by way of lease and release, bearing date on the 21st day of September, 1771, was executed on the occasion, and in contemplation of the intermarriage of Catherine Smyth, who was then of age, with Patrick Palmer, since deceased. The deed was made between the Rev. Thomas Palmer, of Glenmore, in the county of Longford, Clerk, and Patrick Palmer, of the city of Dublin, Esq. barrister-at-law, eldest son of the said Thomas Palmer, of the first part; the Rev. James Smyth, of Merrion Square, in the city of Dublin, and Catherine Smyth, spinster, eldest daughter of Edward Smyth, then late of the said city of Dublin, Esq. deceased, and niece of the said James Smyth, of the second part; and Robert Waller, of Alanstown, in the county of Meath, Esq., and the Rev. Henry Palmer, of Glenmore, clerk, of the third part. Reciting that Thomas Palmer was then seised r (. the towns and lands of Corigena, and part of the lands of Lismacmurragh, in the county of Longford, under a lease for the lives of certain persons therein mentioned, with a covenant for perpetual renewal thereof. And also seised of the town and lands of Glenmore, in the said county, for the lives of the said Thomas Palmer, and Patrick Palmer, at the rents and under the clauses and covenants therein mentioned, and that the said Catherine Smyth, and also Anna Maria Smyth and Elinor Smyth, spinsters, daughters of the said Edward Smyth, and sisters of the said Catherine, were seised, possessed of, and entitled unto an estate in fee-simple of and in the lands of Callowhill, and other lands [78] therein mentioned, generally called the Callowhill estate, situate in the half barony of Knocking, and county of Fermanagh, as also of and in the toll, etc., in coparcenary, subject to a chief rent of £50 yearly, payable out of all said lands and premises to, etc. And further reciting the then intended marriage between said Patrick Palmer and said Catherine Smyth, and that the said Thomas Palmer, in consequence thereof, and for the considerations therein mentioned by the said indenture, granted, bargained, sold, released, and confirmed unto the said Robert Waller and Henry Palmer all and singular the lands of Corigena, and Lismacmurragh and Glenmore, in the actual possession, etc. to hold the said lands of Corigena and Lismacmurragh, unto the said Robert Waller and Henry Palmer, their heirs and assigns, for the lives of the cestui que vies, and during the lives of such other persons as the said premises should be granted or renewed for, pursuant to the covenant, etc. to the use and behoof of the said Robert Waller and Henry Palmer, their heirs and assigns, subject to the yearly rents and covenants in the said indenture of lease contained upon the trusts, nevertheless, and to and for the uses, intents, and purposes thereinafter mentioned, and declared of and concerning the same; and to hold the said town and lands of Glenmore, etc. to the uses and purposes therein declared concerning same; that is to say, as to the said lands of Corigena and Lismacmurragh to the use of Thomas Palmer, his heirs and assigns, until such marriage should take effect, and from and after the said marriage, in trust, to permit the said Thomas Palmer 242 FAUSSETT V. CARPENTER [1831] V BLIOH N. S. and his assigns, to take and receive to his and their own use, the clear rents and profits of said lands of Corigena and Lismacmurragh, after payment of the head landlord's rent, and fines for renewal thereof for his life, and after the death of Patrick Palmer, whether in the life of said Thomas Palmer, or after his death,* in trust, that said Catherine Smyth, iri case she should survive said Patrick Palmer, her intended husband, should and might receive thereout an annuity or yearly rent charge of £60 sterling. And from and after the death of said Thomas Palmer, in trust, to permit said Patrick Palmer and his as-[79]-signs, should he survive said Thomas, to take and receive to his and their use the yearly rents, issues, and profits, of all the said leasehold premises, after payment of the head rents and fines for renewal payable thereout, for and during his natural life, and from and after the death of said Patrick Palmer, leaving issue two or more children of said marriage, living at the death of said Patrick Palmer, then upon trust to convey and assign said leasehold interest of Corigena and Lismacmurragh, subject to the said annuity of £60, and to pay and dispose of the rents and profits thereof in the mean time, and until such conveyance 'to and amongst such children, or to the issue of such children, and in case such children should die, leaving issue, in...
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