Collard v Collard
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1682 |
| Date | 01 January 1682 |
| Court | Court of the King's Bench |
English Reports Citation: 79 E.R. 1164
King's Bench Division
collard versus collard. 5. In an ejedione firma brought by Constantine Collard against Richard Collard, the case appeared to be this; Thomas Collard was seised in his demesn as of fee, of lands in Winkle in the county of Devon, called the Barton of Southcote : and having two sons, to wit, Eustace the eldest, and Richard (the now defendant) the youngest, and the eldest being to be married, the said Thomas in consideration of this marriage, being upon the said Barton, said these words. Eustace stand forth, I do here, reserving an estate for my own life and my wives life, give unto thee and thy heirs for ever these my lands, and Barton of Southcote; after which the said Thomas enfeoffed his youngest son of Barton, with warranty from him and his heirs, the eldest son enters, and let to the plaintiff, upon whom the defendant re-enters, upon which re-entry the action was brought, and upon a special verdict all this matter appeared : but it was found by the verdict, that the said Thomas Collard the father was dead, and therefore the warranty was not any thing in the case. And it was moved by Heale that the plaintiff ought to be barred, because it did not pass by way of estate, in as much as a man cannot pass a free-hold of a land POPHAM, 48. COLLARD V. COLLAED 1165 from himself to begin at a time to come, and by it to create a particular estate to himself, and in use it cannot pass, because that by a bare parol an use cannot be raised, and by giving my land to my son, cousin, and the like, nothing will pasa without livery, for there is not consideration to raise an use. Fetmor. The words shall be taken, as if he had said (here I give you this Barton reserving an estate for my life) although the words of reservation have priority in their time for the speaking of them, because a reservation cannot be but out of a thing granted, and therefore the reservation shall be utterly void, or otherwise ought to be taken according to their proper nature, to wit, to be in their operation subsequent, and so shall not hurt the grant, and therefore are not to be compared to the case where a man grant that after the death of I. S. or after his own death a stranger shall have his land, which Popham granted. And Fennor said further, that these words being spoken upon the land, as before, amount to a livery. Gawdy said, that the words as they are spoken amount to a livery, if the words are sufficient to pass the estate, but he conceived that the words are...
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