Counden v Clerke
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 80 E.R. 180
King's Bench Division
Referred to, Holt v. Sindrey, 1868, L. R. 7 Eq. 175.
13. counden versus clerke. [Referred to, Holt v. Sindrey, 1868, L. R. 7 Eq. 175.] Ejectione sur Hill. 10. Jac. Rot. 3315. Jenk. Cent. 294. Winch. Int. 445. Mo. 860. Devise B. 1. 1 Ro. 839. 1 Brill. 129. Devise to the heir or heirs of the name of the devisor must find a very heir. Of devises and their intents at large. This case is in Moor's Reports, fo. 860. and judgment given for the defendant, against the brother of the devisor's title. George Counden the younger brought an ejectione firrme against Thomas Clerke of three acres of pasture in Nowington, of the demise of George Counden the elder; upon an issue of not guilty, the jury found a special verdict, that one William Counden was seised of the land in fee, and held them with others in soccage, and had issue one John Counden and Elizabeth Counden, and that the said Elizabeth took to husband one George Dalton, and had issue by him Jane Dalton and Elizabeth Dalton, and died ; and that William Counden made his will, and gave thereby unto Jane and Elizabeth Dalton, to either of them ten pounds a year, during their lives, issuing out of certain lands in Southwark, called the Woolsack Rents, and therein had this clause. " Item, as touching all my lands in Southwark, and in Newingtori, Lambeth, and Greenwich, whereof I now stand seised, which of right will, and my oidy intent and meaning is, shall descend and come unto John Counden my son, after my decease, this is my devise." And then appoints, that certain friends of his shall receive the profits of them till his son shall come to 24 years, and then they to make an account and satisfle him. And then adds this clause, " Provided always, that if my son John shall happen to decease without issue of his body lawfully begotten, that then I will all and singular my said lands, tenements and hereditaments, and every parcel thereof, shall go unto the right heirs males, and posterity of me and my name for ever, equally to be divided unto and amongst them, part and portion like. And that then, and in such ease I will and bequeath unto Jane and Elizabeth Dalton, and to either of them, one annuity or yearly rent of 51. a year a-piece more, issuing out of the Woolsack Rents, for term of their lives." Then the [30] devisor dieth, and John Counden the son dieth without issue, then the two grand-children, Jane and Elizabeth Dalton enter as heirs, and make a lease of the lands in question to the defendant Thomas Clerke, who enters, upon whom George Counden the elder, being brother of William Counden the devisor, of his name and the whole blood, entred ; and made the lease unto the plaintiff, who entred, upon whom Clerke the defendant re-entred. And if upon the whole matter the entry of George Counden the elder upon Clerke the defendant was lawful, then they find for the plaintiff, if not, for the defendant. I will make this case three questions. Whether the limitation to the heirs males, &c. upon the dying of John Counden the son without issue, shall take effect by way of reversion or remainder, or else by way of original or expectant devise. For upon that point decided one way, will fall a certain consequence. The next point is, whether the limitation, if it were a deed, could carry this land to the brother. And the third is, whether it can carry the land to the brother in case of devise, as this is. HOBABT.31. COUNDEN V. CLEBK.E 181 And to the first, I am of opinion, that the son is by the proviso of this will made tenant in tail to him and the heirs of his body. For the implication (which in a will is sufficient for that purpose) is plain. Hereof it will follow, that the limitation, after following to the right heirs males, &c. will be but a reversion and will vest also in the son ; for this is a positive rule, that a man cannot raise a fee-simple to his own right heirs by the name of heirs, as a purchase, neither by conveyance of land, nor by use, nor by devise, 28 H. 8. The case of The Abbot of Bury, &c. and The Lord Borough's case, 35 H. 8. Dyer 54. Nay more, 4 H. 6. If a man devise lands to a person, that is next heir, and his heirs, the devise is void, and it works by descent, Mich. 2. and 3 Phil, and Mar. Dyer 124. Debt against an heir. The defendant pleaded, that he had but the third part of twenty acres by descent, the issue was, whether he had the whole, and it was found that the obligor his father devised the whole to his wife, untill the defendant his son and heir should come unto the full age of 24 years, and from thenceforth to him and his heirs, and judgment was given for the plaintiff...
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