Digby against Martha Fitzharbert
| 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. 251
King's Bench Division
HOBART. 102. DIGBY V. TITZHARBERT 251 128. G. digby against martha fitzharbert. Trin. 13 Jac. Rot. 2560. Derby. Waller. Quare impedit declared upon seisin and presentment avoided, and the seisin also traversed. Moor f. 869. George Digby brings a quare impedit against Martha Fitzharbert, and declares that Thomas Fitzharbert Esquire was seised of the manor of Narbury with the advowson in fee, and presented one Brown ; and then granted the next avoidance unto the plaintiff, and now Brown is dead, &c. Martha says, that Thomas Fitzharbert Knight was long before, &c. seised of the manor, &c. in fee, and presented one Murrain, and afterwards infeoffed one Richard Fitzharbert in fee simple, who conveyed the said manor unto the said Tho. Fitzharbert for the life of one Bamford, the remainder to one Anthony Fitzharbert in fee ; and then Murrain died, and Thomas Fitzharbert presented Brown, and then granted the next avoidance unto the plaintiff, and then Bamford died ; and then Anthony Fitzharbert entred, and made his will, and gave the manor, &c. unto Martha for her life, and died, and then Brown died ; and then she presented the clerk, and traversed without that, that the said Thomas Fitzharbert at the time of the grant made to the said George Digby was seised of the manor in fee, &c. prout, &c. The plaintiff replies and maintains his declaration, and traverseth without that, that the said Thomas Fitzharbert at the time of the grant made by him unto the plaintiff, was seised of the said manor for the term of the life of Bamford, prout the defendant alledged, and thereupon it is demurred in law. The case in the argument I divided into four questions. The first question, whether the defendant's plea had been good without traverse of the seisin in fee? Another question, whether the defendant have not election either to traverse or not, but to leave it as a confession and avoydance, and then the traverse hath come aptly, aa it is on the other side. A third, whether the now defendant having taken a traverse hath not so locked up the plaintiff, as he hath no choice but to join upon that to avoid infinity. [102] Lastly, whether if the plaintiff hath power to resort to traverse the defendant's inducement to his traverse, yet he hath taken that traverse right, or ought to have given it mare scope by a modo & forma. To the first, 26 H. 8. 4. by the opinion of Fitzharbert, is that upon such account of seisin in fee, &o. in a quare imped, against Prior, the defendant pleaded a grant to the plaintiff of a prochein avoidance ; the defendant needs not traverse the seisin in fee, because it was a confession and avoidance, quod nullus negavit, which is less than a concessum only, qui tacet consent! re videtur. It is true also, that Brook makes a mirum of it in the abridgment of it, and 2 E. 4. 11. is to the same purpose thus : In an asaise, if the defendant plead that I. S. was seised in fee and infeoffed him, the plaintiff may say, that himself was seised in fee and granted unto I. S. for his life, who infeoffed I. I), upon whom he entred without a traverse, as being confessed and avoided. And therefore I incline to hold the opinion of Fitzharbert, 26 H. 8. 4. for law, because at the presentment executed without more but makes a fee, and proves a fee, and therefore if the defendant shews that the presentment was such as neither made nor proved fee, it is a confession and avoidance sufficient. For a presentment is indifferent, and works as the root is from whence it grows, As for example, here as the plaintiff lays it, it is the fruit of an estate in fee, and so settles and proves a fee-simple in the plaintiff, or in Thomas Fitzharbert that granted the next...
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