Doe D. Cadwalader and Others v Price
| Jurisdiction | England & Wales |
| Judgment Date | 15 February 1847 |
| Date | 15 February 1847 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 1331
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 16 L. J. Ex. 159; 11 Jur. 131. Approved, Cottrell v. Hughes, 1855, 15 C. B. 532.
16 W. & W. 603. DO E V. PRIG E 1331 [603] doe d. cadwalader and others v. PracE, Feb. 15, 1847.-In 18'2'J A. died seised in fee of lands, of which his eldest son, R, was his tenant. On his death, U., supposing him to have died intestate, entered on the lands, claiming them as heir-at-law, and in 1830 mortgaged them in fee, and levied a fine to confirm the mortgage ; and. at the same time, an outstanding term of 500 year's was by his direction assigned to a trustee for the mortgagee. In 1835 B. sold the estate to the defendant, who paid off the mortgage ò the legal estate in fee and the equity in redemption were conveyed to the defendant, and the term was assigned to a trustee for him, to attend the inheritance. In 1845 it was discovered that A. had executed a will, whereby he devised the lands in fee to his second son, who thereupon brought ejectment to recover the estate from the defendant, and laid a demise in the name of the trustee to whom the term was assigned in 1835.-Held, first, that B. had a sufficient estate to make him a good conusor of the fine; secondly, that, by the operation of the 8 & 0 Viet. e. 112, the term had absolutely determined, and the plaintiff could not recover upon the demise bud in the name of the trustee.-To prove the levying of a fine with proclamations in a court of great session in Wales, the chirograph was produced, having one proclamation indorsed, and the plea-roll of the same session at which the chirograph stated the tine to have been levied, containing an entry of a licentia concordancli between the same parties and respecting the same premises as those mentioned in the chirograph :-Held sufficient, by virtue of the stat. 5 Viet. c. 32, s. 2. [S. C. 16 L. J. Ex. 159; 11 Jur. 131. Approved, CottrM v. Hughes, 1855, 15 C. B. 532.] Ejectment to recover a messuage and lands in the parish of Llanycil, in the county of Merioneth. At the trial, before Lord Denman, C. J., at the last assizes for that county, the following facts appeared in evidence:- Thomas Cadwalader died in the year 1829, seised in fee of the property in question, a farm called Cefn. It was admitted at the trial that, on his death, his eldest son, Cadwalader Thomas, who had for many years lived upon the farm as tenant to his father, entered into possession of it as his heir-at-law, it being supposed that lie had died intestate. In 1830, Cadwalader Thomas mortgaged the estate, by indentures of lease and release, to one William Williams in fee, and at the court of great session for the'county of Merioneth, holden in August 1830, levied a fine to confirm the mortgage. At the same time, an outstanding term of 500 years, which had been originally created in the year 1777, was assigned to a trustee for the mortgagee. In July 1835, the defendant purchased the farm from Cadwalader Thomas, and paid off the mortgage ; and by indentures of lease arid release, dated in October, 1835, and executed by Cadwalader Thomas and by the mortgagee, the legal estate and the equity of redemption were conveyed to the defendant in fee ; and by indenture of assignment of the samje date, the term of 500 years was assigned by the trustee of the mortgagee to a trustee named; [604] by the defendant, to attend tha inheritance. In 1845, it was clistjovered tha;t Thomas Cadwalader had, before his death, duly executed a will, whereby he devised the farm in question to his second son, William Thomas, one of tha'lessors of the plaintiff, in fee. Shortly before the trial, the plaintiff, having obtained a judge's order for that purpose, added a demise in the name of the defendant's trustee, to whom the term was assigned in 1835 (who was since dead), and another in the name of his executrix. The defendant relied on the tine as a bar to the claim of the lessor of the plaintiff, and, in order to prove it, put in evidence the chirograph, which was in the following terms :- " Merioneth, to wit.-This is a final concord, made in the court of our sovereign lorcj the King, of his great session of the said county, held at Dolgelly, in the said county, before Jonathan Raine, Esq., justice of his Majesty's great sessions for the saicj county, and other faithful people of the said lord the King, then and there present, on [Thursday, to wit, the 12th day of August, in the first year of the reign of our sovereign lord: William the Fourth, now king of the united kingdom of Great Britain and- Ireland, and ho forth, between William Williams, gentleman, plaintiff, and Cadwalader Thomas, gentleman, and Margaret his wife, deforciants, of four messuages, lf}32 DOE V. PRICE 16 M. &W. 605. four dwelling houses, &c., with the appurtenances, in the parish of Llariycil, in the said county ; whereupon a writ of covenant hath been sued thereupon between them in the same court, that is to say, that the aforesaid Cadwalader and Margaret have...
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