Doe D. Roberton v Gardiner
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1852 |
| Date | 12 June 1852 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 927
IN THE COURT OF COMMON PLEAS
S. C. 21 L. J. C. P. 222.
[319] cases akgued and determined in the court of common pleas, in trinity term, in the fifteenth year of the reign of queen victoria. The judges who usually sat in banco in this term, were,-Jervis, C. J., Maule, J., Cresswell, J., and Talfourd, J. DOE D. ROBERTON V. GARDINER. June 12, 1852. [S. C. 21 L. J. C. P. 222.] A., being seised in fee of a moiety of certain lands, and B., being seised for life of the other moiety, they, in 1805, by indenture, reciting that they were entitled thereto as tenants in common, and that they had agreed to grant a perpetual lease thereof to C., his heirs, &c.,-granted, demised, &c. the same to C., " his heirs, executors, administrators, and assigns, for ever," to hold from a day then past unto and to the use of C., " his heirs, executors, administrators, and assigns, for ever;" yielding and paying therefor yearly and every year to A. and B., their heirs, &c., the clear yearly rent or sum of 1201., half-yearly, &c. The deed contained all the covenants usually found in an ordinary lease:-Held, that, in the absence of proof, that, at this act; and which boards shall from time to time be renewed as often as the same, or any part thereof, shall be obliterated or destroyed; and such bye-laws, orders, and rules shall be binding upon and be observed by all parties, and shall be sufficient in all courts of law or equity to justify all persons who shall act under the same; provided that such bye-laws, orders, or rules be not repugnant to the laws of that part of the united kingdom of Great Britain and Ireland called England, or to any directions in this act. contained ; and all such bye-laws, orders, and rules shall be subject to appeal in manner hereinafter (s. 215) mentioned." (a) See Chilton v. The London and Croydon Railway Company, 16 M, & W. 212. 928 DOE !'. GARDINER ,12 C.E. 320. the date of the deed, the premises were in the occupation of tenants, so that a reversion only could pass, and the expressed intention of the parties precluding the court from presuming that vthere had been livery of seisin,-^the deed-could not operate as a conveyance of .the fee, subject ,to a rent-charge, but created only, a tenancy from year to year. ... : . This was an action of ejectment for the recovery of an undivided moiety of certain lands and premises situate in the parish of Manchester, in the county of Lancaster. On the trial before Cresswell, J., at= the last Spring assizes at Liverpool, a verdict was found for the lessor of the plaintiff, with nominal damages, -subject to the opinion of this court upon the following case :ò-- [320] The lands of which the undivided moiety was sought to be recovered, formerly belonged to a Mrs. Catherine Heath, widow, who by her will, dated the 21st of May, 1772, devised them to her daughter Mary Heath, and her other daughter Hannah Eoberton, wife of William Eoberton, Esq., and their heirs, for ever, as tenants in common. Mrs Catherine Heath died in the year 1780. On the 23rd of August, 1781^ an indenture was executed between the said William Eoberton and Hannah his wife of the one part, and one Daniel Whittaker of the other part, whereby the said William Eoberton and Hannah his wife covenanted that òthey would, at the then next or some other subsequent assize to be holden for the county palatine of Lancaster, acknowledge and levy, &c. one or more fine or fines sur conusance de droit come ceo, &c. with proclamations, unto the said Daniel Whittaker and his heirs, of the undivided moiety or equal half part of, amongst others, the lands devised by Mrs. Heath above mentioned : and it was thereby declared that such fine or fines should enure to and for the use and behoof of such person and persons, and for such estate and estates, intents, and purposes as the said William Eoberton and Hannah his wife, or as the said Hannah alone,- without the said William Eoberton, her husband, notwithstanding her coverture, should, in such manner as was therein contained, limit or appoint: and, in default of such limitation or appointment, to the use and behoof of the said William Eoberton and Hannah his wife, for their joint lives and the life of the survivor of them; and, from and after the decease of the survivor of them, to the use arid behoof of the right heirs of the said Hannah Eoberton for ever. A fine was shortly afterwards, in the same year, levied accordingly. In February, 1801, Hannah Eoberton died without having executed any of the powers of the [321] above-mentioned deed, leaving her husband surviving. On the 2nd of April, 1802, her son and heir, Archibald Hamilton Eoberton, died. He left two daughters surviving,-Mary, the lessor of the plaintiff, born on the 20th of September, 1798, and Emily, born on the 25th of April, 1801. On the 1st of May, 1801, by indenture between Mary Heath, above mentioned, and the said William Eoberton, of the one part, and James Bothwell of the other part, the said Mary Heath and William Eoberton demised to the said James Eothwell a warehouse, with the appurtenances, part of the said premises so devised by Catherine Heath, and then in the possession of the said James Eothwell, for the term of eleven years from the 24th of June then next. On the 8th of February, 1805, by indenture between Mary Heath, above mentioned, and the said William Eoberton, of the one part, and James Heath of the other part,-reciting that the said Mary Heath and William Eoberton, by virtue of the last will and testament of Catherine Heath, widow, deceased, late mother of the said Mary Heath, and of Hannah Eoberton, late wife of the said William Eoberton, were entitled, as tenants in common, amongst other things, to the hereditaments and premises hereinafter mentioned, and that the said Mary Heath and William Eoberton had agreed to grant a perpetual lease thereof to the said James Heath, his heirs, executors, administrators, and assigns, in manner thereinafter mentioned,-it was witnessed, that, in pursuance of the said agreement, and for and in consideration of the clear yearly rent, cover ants, and agreements thereinafter mentioned and reserved, and on the part and behalf of the said James Heath, his heirs, executors...
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