Doe dem. Beanland and Others v Hirst
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1822 |
| Date | 28 November 1822 |
| Court | Exchequer |
English Reports Citation: 147 E.R. 537
IN THE COURT OF EXCHEQUER
[475] doe; dem. beanland and others -e. HrKST(a). Thursday, 28th November 1832.-New Trial of Ejectment granted under particular circumstances in evidence in the cause, notwithstanding the verdict of the Jury (for the Defendant) was in Conformity with the direction of the learned Judge who tried the Action.- Coats ordered to abide the event.-As to what length of time, and what species of adverse possession, ia sufficient to raise a presumption of grant in favour of the right to a, good title in a register county ; and what is inwufficient to infer fraud, and what effect deeds under circumstances affecting their construction should have aa evidence-see the facts of the Case. This was an action of Ejectment for Coal-mines in the Parish of Bradford and County of York. Upon the Trial at the York Spring Assizes, 1822, before Bayley, J., the case appeared to be as follows. The coals in dispute consisted of a vein of low-bed coal, lying under a farm called the Lower Busk Ing Farm, at a depth of between forty and fifty yards below the level of a sough or water-gate, called the Blackshaw Beck Sough. They had been drowned in water until the year 1812, when, in consequence of the completion of a sough, called the Annatt Hole Drain, which, from the year 1793 up to that period, had been working at an expense of several thousand pounds, by Joseph Woodhead, and, after him, by Aydon and Elwell, with a view to drain some extensive coal-mines near to, but unconnected with the one in question, for the first time they became dry and capable of being gotten. In 1813 Aydon and Elwell began to sink for these low-bed coals, but, before reaching them, were discharged from proceeding any further by Joseph Hirst, who claimed them as heir-at-law of his father. Aydon and Ehv'ell, upon this, took a lease of them from him at one hundred pounds per acre, and, under that lease, continued to get the coals for several years, paying Joseph Hirst his rent, and also paying to the tenant of the farm one guinea [476] a-year, as a compensation for damage done to the surface. Some time after AyJon and Elwell began to work these coals, they received notice from the owners, of the estate that the coals belonged to them, but they paid no attention to such notice, and it was not repeated, although the owners of the estate were aware of the yearly payment of one guinea to the surface tenant. In the year 1816, Joseph Hirst died, leaving an only son, Thomas, his sole heir and devisee, who thereupon became entitled to the rent for these low-bed coals. In 1820, an action of ejectment was brought by John Hirst against Aydon and Elwell for recovery of these ' low-bed coals, which action Thomas Hirst, as their landlord, defended. On the trial of that cause, it appeared that Joseph Hirst was born before marriage, and, as such, incapable,i although the eldest aon, of being heir to his father, whereupon, on the father's death, the coals in question vested in his younger son, Thomas, who was born after marriage, and from whom, upon his death in 1802, they descended to the then Plaintiff' as his only son and heir-at-law. Upon this evidence a verdict was found for^he then plaintiff, who was, in the following term, put in possession of the low^bed tjoals under a writ of Ha. fa. poss. An action for mesue profits was then eommeaced by John Hirst against Thomas Hirst, which terminated in a reference at Nisi Prins, under which the arbitrators awarded a certain sum, and also ordered Thomas Hirst to give up to John a deed, bearing date the 3d December 1765, which they adjudged to be [477] in his possession, and which was accordingly given up in the month, of June, 1821. In Michaelmas Term, 1820, the present action of ejectment was commenced against John Hirst by the owners of the Lower Busk Ing Farm on the ground that the low-bed coals in dispute were a part of the inheritance, and had never been granted ^iway. The cause was brought down for trial at the following York Assizes, but, front a mistake in laying the day of demise in the declaration, the Plaintiffs were nonsuiteql. In June, 1821, Thomas Hirst applied to James Bottomley, one of the (a) Ex relatione. 53i8 DOE V. HIRST 11 PRICE. 4f8. lessors of the Plaintiff foe the deed of 1765, which was then in Bottoniley's possession, in order to give up the same to John Hirst, pursuant to the award. With this deed Bqttomley refused to part, and, therefore, in order to avoid an attachment for non-performance of the award which had been moved for against him, Thomas Hirst agreed to purchase the Lower Busk Ing Farm at the price of seven hundred pounds, amongst the title deeds of which he received the deed of 1765. It was also agreed that no conveyance should be made of the estate until after the determination of the ejectment then pending, so that the parties on the record still continued the same, although Thomas Hirst became the only person beneficially interested. In support of their title, the lessors of the Plaintiff produced the following deeds: [478] '21st and 22nd October, 1713. Conveyance to make a tenant to the prsecipe aiid exemplification of a recovery suffered thereupon in Easter Term, 13th Ann. To the use of Samuel Hulme and Mary his wife, and their heirs, of (inter alia) certain lands, situate in Revey, in the pariah of Bradford. 16th April, 1756. Will of the said Samuel Hulme, whereby he devised all his ustates whatsoever and wheresoever, unto Mary his wife, and her heirs and assigns for ever. 30th October, 1766. Will of Mary Hulme, whereby she devised all her estates te trustees, therein mentioned, in trust, to sell the same as soon as conveniently might be after her decease, and apply the purchase monies as therein directed. 3rd and ith January, 1780. Conveyance by the said trustees of (amongst others) the farm called the Lower Busk Ing Farm, situate in Revey aforesaid, to Josiah Hotbam, big executors, administrators and assigns for the term of 2000 yeara, subject bo redemption. Remainder to the use of Joseph Hulme, his heirs and assigns for ever; proviso for redemption, on payment of 6001. and interest by the said Joseph Hulme to the said Josiah Hotham, his executors, administrators or assigns, on a day therein mentioned. 24fch December, 1782. Probate of the will of the said Josiah Hotham, whereby he- gave all the re-[479]-aidue of his goods, chattels, monies, securities for money, estate and effects, whatsoever, unto his daughter...
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The Same v Bateman
...instrument, its subsequent alteration, or even destruction, does not devest them. 4 B. & A. 677, Doe v. Bingham, per Holroyd J. .See also 3 Stark. 60, 61, Doe v. Hirst. Thus where an alteration is made in a covenant in a deed by which an estate has been conveyed, the right thereto will not ......
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