Daniel Delacherois, - Plaintiff in Error; Nicholas Delacherois, - Defendant in Error
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1864 |
| Date | 20 July 1864 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 1254
House of Lords
Mews' Dig. iv. 358; xv. 1140, 1263, 1390. S.C. 4 N.R. 501; 10 Jur. N.S. 886; 10 L.T. 884; 13 W.R. 24.
Manor - Demesne Lands - Demise - Reunion - Purchase - Escheat
[62] DANIEL DELACHEROIS,-Plaintiff in Error; NICHOLAS DELACHEROIS, -Defendant in Error [July 7, 8, 1862 ; June 29, 30; July 2, 1863 ; May 10; July 20, 1864]. [Mews' Dig. iv. 358; xv. 1140, 1263, 1390. S.C. 4 N.R. 501; 10 Jur. N.S. 886; 10 L.T. 884; 13 W.R. 24.] Manor-Demesne Lands-Demise-Reunion-Purchase-Escheat The demesne lands of a manor previously granted in fee do not become reunited to a manor, if purchased by the lord, as they would do if they had reverted to him by escheat. If the demesne lands of a manor are treated, in a conveyance of them in fee, as a distinct property, as, for instance, being conveyed by the lord in fee without being accompanied by a declaration of the feoflor's title as lord, or being described as lands held of the manor, but only as lands situate, lying, and being within the manor, they are severed from the manor, and cease to form part of it, although the rents and dues may remain. On re-purchase, by the lord, of the fee simple, he will hold them of the chief lord. They will not on such re-purchase, again form part of the manor, so as to pass under that description made in a will dated anterior to the purchase. In the reign of Charles I., a grant was made by patent to Viscount Montgomery of a manor to be held in fee and common socage, with power to create as many separate manors, and to appoint as many tenemental lands to each manor as the grantee should think fit, and also with license to grant in fee simple or for lesser estates any of the lands belonging to such manors, to be held thereof respectively by suit of Court, and such other services or rents as he, his heirs, etc., should think fit, non obstante the statute Quia Emptores. This patent was validated and confirmed by Acts of the Irish Parliament. The heir of the grantee, in the year 1721, granted by indenture or lease and release to A., in fee farm, certain of the tenemental lands of the manor. They were described as " situate, lying, and being in the manor," and were to be held at a rent of 6 suit and service to the manor, payment of small sums for leet money, and an obligation to grind corn at the manor mills; performance of each of which things was secured by covenant; and the grantor also reserved a power of distress: Held, that the lands thus granted out were severed from the manor. In March 1836 the owner of the manor executed a will devising " the manor " to the younger of his two nephews. In 1842 he purchased the tenemental lands which had been granted out in 1721. He died in October 1850, without having altered or republished his will: [63] Held, that these lands were not by the purchase re-annexed to the manor so as to pass by the will, but devolved upon the testator's heir-at-law. By Letters Patent, dated llth October, 2 Charles I., the king granted to Hugh Viscount Montgomery, his heirs, etc., to be held in1 fee and common socage, certain territories and lands " in the baronies of Clandeboye and Ards, in the county of Down (amongst which were the lands of Bellyhayes), constituting the manor of Donaghadee, otherwise Montgomery, with power to create as many separate manors as they should think fit, and to appoint as many tenemental lands to each manor, etc., and with license to grant in fee simple, or for lesser estates, any of the lands lielonging to such manors, to be held thereof respectively by suit of court, and such 1254 UELACHERGIS V. DELACHEROIS [1862-64] XI H.L.C., 64 other services or rents as he, his heirs, etc. should think fit, the statute of Quia Emptores, or any other law, etc. notwithstanding." This grant (with many others of a similar kind) was confirmed (with the non obstante clause expressly included) by Acts of the Parliament of Ireland. Viscount Montgomery died, leaving a son Hugh, who in July 1661 was created Earl Mount Alexander. Henry, the third Earl of that title, became lord of the manor, and his son Thomas, afterwards the fifth Earl, joined in 1721 in an/ indenture of lease and release, and thereby granted in fee farm to one Luke St. Lawrence, of Dublin, " the town lands of Ballyhayes with the rectorial tithes thereof, situate, lying, and being in the manor of Donaghadee, in the barony of Ards, in the county of Down," at a rent of &, suit and service to the manor, payment of small sums for leet money, and the obligation to grind corn at the manor mills, performance of each of which things was secured by covenants on the [64] part of the tenant; and there was also reserved to the grantor and his heirs a. power of distress for default. There were then covenants for title on the part of the grantors. The lands thus granted afterwards came into the possession of Mr. Joseph Hoare Bradshaw. In 1775, by a partition deed made between Samuel Delacherois. and Nicholas Crommelin, to whom these estates had come under the will of the widow of the fifth Earl, the manor of Donaghadee became vested in Delacherois, whilst the fee farm rent, reserved by the deed of 1721, and the mill of Donaghadee, and some other parts of the property became vested in Crommelin. This Samuel Delacherois was succeeded by his son and heir, Daniel, who died intestate, leaving two sons, Daniel (called in this suit " the testator") and Samuel, and a daughter named Mary. Samuel died early in 1836, leaving two sons, Nicholas and Daniel. The testator, by a will dated in March 1836, devised all his real estates to his sister Mary for life, with remainder to the use of such of his nephews, sons of his late brother Samuel, as his said sister should by deed or will appoint, for the life of such nephew, remainder to the use of the first and other sons of such nephew in tail male, etc. In 184:2 the testator purchased from Mr. Hoare Bradshaw the estate in Ballyhayes, granted by the deed of 1721. The conveyance was in the common form to a purchaser. The lands were described as " situate and being in the manor of Donaghadee, in the barony of Ards and county of Down." The testator died (without having republished or made any alteration in his will) on the 1st October 1850. The sister entered into possession, and made her will, dated 4th June 1852, whereby, after reciting this power of appointment, she appointed her younger nephew, Daniel (the Plaintiff in Error), to take all the real estate of her late brother in the manner described in his will. Mary [65] Delacherois died 10th March 1854, and the nephew, Daniel, then entered into possession. In 1856, Nicholas Delacherois, the elder of the two nephews, brought an action of ejectment against his brother Daniel, claiming to be entitled, as heir-at-law, to the lands of Ballyhayes, which he contended had not been disposed of by the will of the testator, for that they were purchased by the testator after the date of his will (which was executed before the passing of the Wills Act), and that, consisting as they did, of tenemental lands which had been severed from the manor, they did not pass by the general devise of " the manor." The cause was tried before Mr. Justice Ball, at the Summer Assizes of 1856, for the county of Down, when, on the learned Judge's direction, the jury found a verdict for the Plaintiff, Nicholas Delacherois. On a bill of exceptions, tendered by the Defendant, the Court of Common Pleas held the direction to be right, which holding was afterwards confirmed by a majority of Judges in the Exchequer Chamber. Lord Chief Baron Pigot dissented, being of opinion that " the grant of 1721, reserving services, retained, by means of those services, the lands in connection with the manor, and this the law allowed because the Statutes of Quia Emptores and De Prerogativa Regis did not apply." The present proceeding in error was then brought. The Judges were summoned, and Lord Chief Justice Baron Pollock, Mr. Justice Williams, Mr. Justice Willes, Mr. Baron Bramwell, and Mr. Justice Blackburn attended. Sir H. Cairns and Mr. Hugh Law (of the Irish Bar,-Mr. C. Hall was with them) 1255 XI H.L.C., 66 DELACHEROIS V. DELACHEROIS [1862-64] for the Plaintiff in Error.-This case must be discussed without reference to the [66] restrictions imposed by the Statute Quia Emptores, for the non-obstante clause in the original grant from the Crown has been adopted and confirmed by the Irish statutes. The lands purchased between the date of the will and the death of the testator passed by the general devise of the manor, for by that purchase they had become reunited to the manor. There is no doubt, indeed it was admitted in the Court below, that if they had reverted to the lord by escheat they would have passed, Bunker v. Cook (11 Mod. 121-129; Fitzg. 225, 231; nom. Ranter v. Coke, 1 Salk. 237-8 : nom. Broncker v. Coke, Holt, 247-8), Brett v. Eigden (Plowd. 340), Sheppard's Touchstone (Preston's Edit. c. 23, p. 439), but it was denied that purchase had the same effect as escheat. In, judgment in the Court below these demesne lands were spoken of as having been severed from the manor. This is incorrect. The lands themselves were demised in fee, but they continued to be held of the manor, were subject to suits and services, and retained all the characteristics of demesne lands of the manor. The seigniory was still in the lord, though the profitable use of the lauds was in the tenant. There is no ground for saying that there is a distinction, in reference to the reunion of the lands with the manor, between tenemental lands escheated to the lord, and such lands purchased by him. A manor consists of demesne lands and of tenemental lands. The first are those which he retains in his own hands for his own. use, the others are those which he demises to tenants to hold of his manor, Spelman (Glossar: Manerium; see...
To continue reading
Request your trial
-
Corpus Christi College, Oxford (President and Scholars) v Gloucestershire County Council
...and convey them as a distinct property. Thenceforward the land ceased to form part of the manor and was held by a freeholder, see Delacherois v. Delacherois (1864) 11 H.L. (I) 62 at pages 102–103 by Lord Brougham. But no such conveyance could adversely affect the rights of common of those w......
-
Crown Estate Commissioners v Roberts
...and convey them as a distinct property. Thenceforward the land ceased to form part of the manor and was held by a freeholder: see Delacherois v. Delacherois (1864) 11 H.L.Cas. 62, 102–103 by Lord St. Leonards. But no such conveyance could adversely affect the rights of common of those who w......
-
Chewton Common Re
......This I think clearly appears from Delacherois v. Delacherois ( 1864 ) 11 H.L. Cas. 62 , ......
-
Moore and Others v Attorney General
...pp. 233, 234. (2) 10 H. L. C. 593. (1) 8 A. C. 135. (2) [1927] I. R. 406. (1) [1914] A. C. 153. (1) 10 H. L. C. 593. (2) 8 A. C. 135. (1) 11 H.L.C. 62. ...