Culley v Doe d Taylerson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 697
IN THE COURT OF QUEEN'S BENCH.
S. C. 3 P. & D. 539; 9 L. J. Q. B. 288.
[1008] matthew culley against doe on the demise of john taylerson. (Error from the Court of Pleas, Durham.) 1840. In 1799 D., M., and A. being entitled to a remainder in fee, as tenants in common, of lands then held by a tenant for life, D. and the tenant for life conveyed the third, in which D. had the remainder, to C., who thereupon entered into possession of the whole. In 1800 the tenant for life died, A. having died before. The heir at law of A. filed a bill in Chancery, in respect of the land, against C. In 1835, while the proceedings were going on, the said heir at law died, having devised to J. all his lands, &c., whether in his own possession or that of others, as far as he lawfully could, specifying those which he was seeking to recover from C. In 1836 the devisor's heir at law brought ejectment against C. for A.'s third part. Held that, under sects. 2 and 12 of stat. 3 & 4 W. 4, c. 27, the defendant's possession could not be held to have been ever that of the other tenants in common ; for that sect. 12 made the possessions of tenants in common separate from the commencement of the tenancy in common, and not merely from the time of the Act passing. That, therefore, sect. 2 would have barred the lessor of the plaintiff; but that his right was saved by sect. 15, the ejectment having been brought within five years of the passing of the Act, and the possession of C. not being adverse to the other tenants in common within the meaning of that section. But that the devise of 1835 (though made before sect. 3 of stat. 7 W. 4 & 1 Viet. c. 26, came into operatiou), defeated the claim of the lessor of the plaintiff as heir at law to the devisor. For that the devisor's right was more than such a mere right of entry as was then not devisable, he having never been disseised, and having a right which enabled him to devise, both before and since stat. 3 & 4 W. 4, c. 27, as. 2, 12, 15. In error on a bill of exceptions, the record stated the exceptions to have been made after the verdict was found The Court (upon the statement of the Judge who tried the cause, and the admission of counsel) amended the record in this respect. [S. C. 3 P. & D. 539 ; 9 L. J. Q. B. 288.] This case was argued in last Trinity term (a)2, by W. H. Watson for the plaintiff in error, and Granger for the defendant in error. The judgment will fully explain the nature of the case and the arguments used. Cur. adv. vult. Lord Denman C.J., in this term (May 12th), delivered the judgment of the Court. This was an ejectment, brought on the demise of John Taylerson against Matthew Culley, to recover the possession of two several undivided third parts of one undivided fourth part of certain premises in the parish of Gainford in the county of Durham. The cause came on to be tried before our brother [1009] Patteson, at the Spring Assizes for the county of Durham, in 1837, when the jury found a verdict for the (a)1 As to wills made on or after 1st January 1838, see stat. 7 W. 4 & 1 Viet. c. 26, ss. 28, 34. (a)* May 28th, 1839. Before Lord Denman C.J., Littledale, Patteson and Williams Js. 698 OULLBY V. DOE U AD. ft E. 1010. plaintiff as to one undivided third part of one undivided fourth part, and for the defendant as to the other undivided third part of an undivided fourth part (a)1. The case now cornea here on a writ of error from the Court of Pleas at Durham, on a bill of exceptions proposed by the defendant to the Judge, in respect of the opinion delivered by him to the jury on the trial of the cause. It appeared by the evidence that, in the year 1757, William Hodgson, seized in fee of the entirety of the premises, by his will, dated 24th November 1757, devised to his daughter Ann Howden one undivided fourth part thereof for her life, with remainder to all her sons and daughters, and their respective heirs, to take as tenants in common ; to his daughter, Elizabeth Colpitts, one other undivided fourth part; to his daughter, Margaret Taylerson, one other undivided fourth part; and to his daughter, Mary Middleton, the remaining undivided fourth part; to each of them respectively for her life, with remainder to all the sons and daughters of each, and their respective heirs, to take as tenants in common. The testator, William Hodgson, died in 1764, without altering his will, leaving his said four daughters mentioned in the will surviving him. All the four daughters were married, and they all had issue. Margaret Taylerson the daughter had issue, Daniel, her only son, and Margaret and Ann, her daughters. In the month of June 1799, Matthew Culley and [1010] George Culley, under whom the defendant claims, entered into a contract with several persons claiming under the will of William Hodgson, for the purchase of their respective shares and interests in the estate in question : and, by indentures of lease and release of the 18th and 19th of June 1799, all the persons then alive who were entitled under the will of William Hodgson, except Margaret and Ann, the two daughters of Margaret Taylerson (and also with the exception of Robert Colpitts, one of the sons of the said Elizabeth Colpitts), conveyed the whole of their respective shares and interests in the premises to Matthew Culley and George Culley, except only two third parts of the said Margaret Taylerson, the testator's daughter's, fourth part of the premises: and which said two third parts, after the death of the said Margaret Taylerson, it is in the said indenture of release expressed, belonged to the said daughters Margaret and Ann, and their respective heirs. This part of the release, it rather appears, is not very correctly worded, unless there be a mistake in the copy in the paper book in error. It should seem, however, that Margaret Taylerson, the mother, did not convey her life estate in these two third parts of the undivided fourth part. A fine was levied of the premises conveyed, in the Court of Pleas at Durham, in pursuance of a covenant in the indenture of release. The purchase was, in fact, made for the benefit of Matthew Culley, who, after the purchase, entered into the possession of the whole of the premises devised by the will of William Hodgson, both of the parts conveyed by the lease and release, and also of the two thirds of one fourth share before mentioned. The bill in Chancery (a)2, and also [1011] the answer, only state that he entered into the parts conveyed by the lease and release: but, in fact, he also entered upon the two thirds of the fourth share. Some time afterwards, but at what time it did not appear, the said Robert Colpitts, one of the children of Elizabeth Colpitts, made some disposition of his interest to Matthew Culley. Matthew Culley afterwards died: and the premises mentioned in the deeds of lease and release descended to his son Matthew Culley, who afterwards...
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