Doe, on the Demise of Hayes and Others, v Sturges
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1816 |
| Date | 26 November 1816 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 87
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 2 Marsh. 505.
/?/-!P fit'-. y^ [217] DOE, ON THE DEMISE OF HAYES AND OTHERS, 0. STURGES. Nov. 26, 1816. [S. C. 2 Marsh. 505.] S. H. devised a term to hia nephew S. H. for life, with remainder over, with a leasing power for twenty-one years, and made S. H. and two others executors. S. H. entered, and was possessed, and alone demised the premises for forty-two years, reserving rent to himself, his executors, &c. Held that neither his entry on the land, nor his sole lease reserving rent to himself and his executors, which was alike inconsistent with his interest as tenant for life, and his duty as executor, should be deemed an assent to the legacy; and that the lease should therefore take effect for the whole forty-two years, out of the lessor's legal interest as executor. This was an ejectment for certain premises in the parish of St. Mary-le-bone, Middlesex. The Plaintiff declared upon six demises of persons who claimed title to the premises: the demises were severally laid on 2d October, 55 G-eo. 3. The cause was tried at Westminster, at a sittings in Easter term, 1816, before Gibb C. J., and a, verdict was.found for the Plaintiff, subject to a case, the material parts of which were, that Samuel Hayes being possessed of the premises, which were leasehold, for the residue of a term of ninety-three years from 24th June 1760, by his will, dated 9th May 1786, devised the premises to his nephew Samuel Hayes, (afterwards the Eev. Samuel Hayes,) for so much of the term and interest, which ho, the testator, should have therein at the time of his decease, as his nephew should live, for his own use and benefit, subject to the rents, covenants, and agreements contained in the original lease ; and after his nephew's decease, the testator devised the same to all and every the children of his nephew Samuel Hayes, and unto John Hayes, the son of his late nephew John Hayes, as tenants in common, arid their respective executors, administrators, and assigns, with benefit of survivorship, if any of such children, or the said John Hayes, should die under the age of twenty-one yeais. And the testator appointed the said Samuel Hayes, John Buckley the elder, and John Buckley the younger, trustees and executors of his will. The will contained a power for his nephew Samuel Hayes, during his life, and for the surviving trustees, after his deceaae, to demise his leasehold premises to any person for any term not exceeding twenty-one years [218] in possession, and at the best and utmost rent which could then be really had for the same, and subject to the usual covenants, conditions, and agreements on the part of the lessee, for upholding and keeping the premises in repair, and without taking any sum of money, flue, or gratuity whatever, for granting such lease, and so as such lessee did execute a counterpart...
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